JUDGMENT
Narendra Nath Tiwari, J.
1. Appellant has been convicted under Section 302 IPC arid has been sentence to undergo RI for life by the Additional judicial Commissioner, Khunti in Sessions Trial No. 423 of 1994.
2. The prosecution case, in brief, is that on 15.12.1993 at about noon, the informant’s younger brother’s wife Binjo Mundain along with her 10 years daughter Jouney and three months aged son had gone to Perto Tanr land to collect fire wood. His younger brother had gone to Jaltanda bazar. At about 4.00 p.m., her niece Jouney (PW 3) informed the informant at his residence that accused Dhuchu Munda @ Sardar Munda assaulted her mother with a Tangi (axe) causing her severe injuries. On getting the information, the informant along with other villagers went to Perto Tanr and found Binjo Mundain lying dead. On her face, there were several injuries caused by Tangi. Her three months aged child was screaming nearby. According to the prosecution, at about 8.30 p.m. on the same day, Karra police arrived at the place of occurrence and had recorded the statement of the informant. On that basis, an FIR was drawn and a case was registered under Section 302 IPC. The police after investigation submitted charge-sheet against the appellant under Section 302 IPC. Subsequently, the charge was framed under the said Section which the appellant denied and he was thus put on trial.
3. In course of trial, the prosecution examined as many as 8 witnesses. Out of them, PW 3 Jouney is said to be the solitary eye-witness. In this case, IO was not examined. PW 1, PW 2, PW 4, PW 5 and PW 6 were the witnesses who were informed about the incidence by said Jouney (PW 3) and thus they are hearsay witnesses. PW 7 is the doctor who conducted post-mortem examination on the dead body of the deceased, whereas PW 8 Dharam Pal Oraon -is the Officer-in-Charge of Karra PS who has proved the formal FIR drawn by Ramraj Mishra, the then ASI Karra PS (Ext 4).
4. PW 1, who is co-villager, stated in his deposition that on the date of occurrence, Jouney (PW 3) while returning home weeping, passed through the front of his house. He followed her and there he heard the account of the incidence which was narrated by Jouney to his elder uncle. Whereupon he along with the informant and others went to the place of occurrence and found the dead body of Binjo Mundain lying with several cut injuries on her face and head. PW 2 almost repeated the same story as was stated by PW 1, PW 4 is the another daughter of the deceased. At the time of her deposition, her age was assessed as 11 years. She stated that on the date of occurrence, she was grazing cows at some distance. She heard the alarm raised by her sister Jouney (PW 3). She rushed towards the place of occurrence and found her mother lying injured. There were several wounds on her face and head and by then her mother had already died. Ac-cording to her, she came to know through Jouney that her mother was killed by the appellant. PW 5 is the informant. He deposed that Jouney informed him at his residence that the appellant had killed her mother by the backside of Tangi. When he along with others went to the place of occurrence he found Binjo lying dead with cut injuries on her head and face. He then informed the village choukidar and the police station. Subsequently Karra police came to the village and recorded his statement on the basis of which the FIR was drawn. PW 6 was tendered. He stated that on that day, he had gone to market and he does not know anything. PW 7 is the doctor who conducted post-mortem examination of the dead body of Binjo Mundain. The doctor found several injuries on the body of the deceased. Lacerated wounds were found on the left side of bridge of the nose with fracture of the nasal bones and frontal bone, left side forehead, over middle cantos of right eye oblique in shape, over the left cheek below the left eye on molar area with fracture of malar bone, one incised wound 3″ x 1/2″ x 3″ on the chin, multiple fracture of mandible. In the post-mortem report, the cause of death in the opinion of the doctor was haemorrhage and shock and the cause of injury opined as, by sharp cutting heavy weapon.
5. Turning back to the evidence of PW 3, it may be pointed out straightway that she was a child aged about 8 years on the date of her deposition in the Court, recorded on 2.2.1995. The date of occurrence was 15th December, 1993 and therefore, the age of this witness at the time of occurrence was 6 to 7 years. Section 118 of the Evidence Act provides that all the persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them or from giving rational answers to those questions by tender years, extreme old age…… or any other cause of the same kind. The law, thus, recognizes a child as a competent witness provided the child of tender age has got maturity of understanding which requires careful evaluation. In this background, the evidence of PW 3 has to be tested. Since the testimony of a witness of tender age depends on certain conditions i.e. careful evaluation of maturity of understanding by putting some questions by which his her understanding by putting some questions by which his/her understanding can be objectively assessed. Putting a general question and asking about how many brothers and sisters she has, cannot be said to be question capable of testing and evaluating maturity of understanding of a child. In this case, a solitary question was put to the child (PW 3) asking her as to how many brothers and sisters she had, which was replied followed by utterances that she had come to the Court to testify that her mother was chopped to death or not. The Court has recorded its opinion that the witness has maturity of understanding all the questions. The conduct of the child in uttering voluntarily regarding the incidence without putting a question, in my opinion, makes her testimony doubtful and gives rise to a possibility of her tutoring by others. In her deposition, she stated that she was there at Perto Tanr and she was taking care of her baby brother while her mother was cutting woods and in the meanwhile, the appellant arrived there and started hitting her mother by the back blunt side of the axe. Her mother was smeared with blood and fell down. She then called her elder sister who was grazing cow at some distance. By the time her sister arrived, the appellant had escaped. Both of them then went to the village and informed grandmother and elder uncle (Bara baap). On hearing the same, all of them went to the P.O. She could not however, recall who were accompanying them. She thereafter added that the police had not come on the date of occurrence. Police came after 8 days. In quick succession, she stated that she cannot say when the police had come. She also stated that they had no enmity with the appellant, rather they had reciprocal visits and occasional sharing of feasts. The said statement of PW 3 is contradictory to the prosecution case made out in the FIR. The police, according to the FIR, came in the evening on the same day. In the FIR, there is no mention of giving blow by the blunt side of the axe. Further that PW 3 had gone to the village and informed her kins. Apart from the above contradiction, there is contradiction in medical evidence and ocular testimony of PW (sic). In the post-mortem examination report, the cause of injury is said to be the sharp cutting heavy weapon, but in her deposition, this witness has stated that the appellant had given blow by blunt side of the axe. Such being the contradictions, it appears that she was unable to form a consistent opinion of the incidence either because of her immaturity of understanding or she was tutored to give such account of the story. The learned Additional Judicial Commissioner, however, has relied upon the testimony of PW 3 on the ground that there was no reason for the child to falsely implicate the accused by plotting a case against him. On the basis of said testimony, orders of conviction and sentence have been passed against the appellant.
6. Mr. Ram Prakash Singh, who was appointed Amicus Curiae in this case by the Court, assailed the said impugned judgment mainly on the ground that the orders of conviction and sentence of the appellant are vitiated in law as the conviction has been based on the testimony of solitary child witness without any cogent and corrobortive evidence on record and that evidence of the child witness is also full of contradictions and inconsistencey. According to him, the prosecution could not demonstrate any motive behind the crime having nexus with the appellant. The oral testimony is also in conflict with the medical testimony and lastly that a child of hardly 6-7 years can fall easy prey of coaching which, in the instant case, is appearing on the face of the record as in reply to the query of the Court as to how many brothers and sister she was, she herself voluntarily stated that she had come to testify that her mother was chopped to death. According to learned counsel, it was incumbent on the Court below to properly test the maturity of understanding of the child, but in fact there is no evaluation of maturity of her understanding which is required by law before relying on the testimony of such evidence. Learned Amicus Curiae cited decisions rendered in Bhagwan Singh and Ors. v. State of M.P. reported in AIR 2003 Supreme Court 1088, in support of the proposition that evidence of the child witness cannot be relied without holding corroborative evidence and the witness of the child is required to be evaluated carefully for basing a conviction. He further relied upon a case reported in AIR 1977 Supreme Court 135 C.P. Fernandis and Anr. v. Union Territory of Goa Daman and Diu, Panji Goa, for fortifying his point that when there are serious infirmities affecting the evidence of the child witness, conviction and sentence cannot be based on such evidence.
7. Mrs. Manjushree Patra, APP, on the other hand, submitted that a child witness requires some tutoring because of his/her tender age and a little amount of it does not vitiate the testimony of such witness. PW 3 was the only witness who was present at the time of occurrence and she alone is an eye-witness. According to her, PW 3 has at least testified that she saw the appellant hitting her mother with a Tangi (axe).
8. Having heard Mr. Ram Prakash Singh for the appellant and Smt. Manjushree Patra for the State-respondent and perused the evidences and materials on record, we find that there is much substance in the submissions of Mr. Singh. The learned Additional Judicial Commissioner has based her finding only on the basis of the sole testimony of the PW 3 who is a child of tender age of 6-7 years and even in her evidence, there are several contradictory and inconsistent statements. From reading of her deposition, it appears that because of her tender age, PW 3 had either no proper maturity of understanding or she had fallen prey of deliberate coaching. There is no other corroboration to her testimony. The Court below has not taken proper caution in testing and evaluating her maturity of understanding and only one question was put to her regarding the number of her brothers and sisters, which a child can answer without applying her understanding. The failure of the Court below in properly testing the maturity of understanding of the infant PW 3 and the major contradictions in her deposition shake the confidence in upholding the conviction and sentence of the appellant, particularly in absence of any other cogent, corroborative evidence on record. It is, thus, risky to rely on the sole testimony of the said child witness PW 3 to maintain the conviction and sentence of the appellant. In such state of doubt and haziness, conviction and sentence of the appellant are liable to be set aside, by giving him the benefit of doubt.
9. We, therefore, allow this appeal and set aside the judgment of conviction and order of sentence passed by the Additional Judicial Commissioner, Khunti in Sessions Trial No. 423 of 1994. The appellant is thus acquitted of the charge framed against him and as he is in custody, he is to be set at liberty forthwith.
Before parting with the judgment, we record our appreciation for Mr. Ram Prakash Singh, AC who has ably and sincerely assisted us in rendering this judgment.
S.J. Mukhopadhaya, J.
10. I agree.