JUDGMENT
Banerji, J.
1. This appeal is from a conviction .and sentence passed by Mr. S. P. Singh, Sessions Judge of Manbhum-Singhbhum at Jamshedpur.
2. The story that I am to relate concerns two women, one the deceased, the wife of Budh-ram LodM (P. W. 9), and another, his concubine, Jalwanti Lodhin, who is alleged to have committed the murder by striking her with a hammer while she was asleep. On 10-4-1950, Motiram Sharma (P. W. 10) received an information from an old woman that the wife of P. W. 9 had been killed by the accused, Jalwanti. He came to the spot and then left for the Town Outpost where he met the Havildar (P. W. 12) and reported to him about the incident. P. W. 12 then sent a telephonic message to Bistupur Police Station, at a distance of about three miles, which was received by the investigating officer, B. N. Sinha (P. W. 13). After getting the message entered in the Station Diary, he left for the scene of occurrence, which he reached at 2-15 P. M. He drew up the ‘fard-beyan’ on the statement of P. W. 10; held inquest over the dead-body; inspected the place of occurrence, and prepared a seizure list on finding certain, articles concealed in the house. Later, after completing the. investigation, he submitted charge-sheet against the accused.
3. An enquiry under Chap. 18, Criminal P. C. ended in the discharge of the accused on 15-6-1950, on the finding that no ‘prima facie’ casg had been established by the prosecution, but, afterwards, the Additional Deputy Commissioner of Singhbhum set aside the order and directed the accused to be committed for trial.
4. Fifteen witnesses were examined in the Court of Session, the most important witness being a daughter of the deceased, Chanda (P. W. 11), who is the sole, witness alleged to have seen the murder of her mother by the accused. Besides the evidence of this eye-witness, the prosecution depends upon various circumstances, which are as follows : (1) the deceased and the accused were quarrelling with each other for some time before the occurrence; (2) she tried to conceal the blood stained hammer and a blood-stained jacket in some other part of the house which, in the circumstances, she thought would not be searched by the police; and (3) the improbability of the injuries having been caused by an accidental fall from, above on the hammer.
5. The learned Sessions Judge, disagreeing with the unanimous opinion of the four assessors, has found the accused guilty and has sentenced her to transportation for life under Section 302, Penal Code.
6. The defence case was that the deceased had gone up the ‘kotha’ in order to bring down a drum containing lime, but she slipped and fell, and in this fall her head came in violent contact with the hammer lying on the floor and the other part of the body with the ground, as a result of which she sustained the injuries found on her person. It was denied that the hammer had been concealed, and the blood stains on the jacket wera explained as having been caused by coming in contact with the injured body when it was being removed from the floor to the cot. No defence witness was examined.
7. Before I deal with the various circumstances proved in this case, I would like to give a description of the injuries which were found by Dr. D. N. Mandal, Assistant Surgeon (P. W. 15), on examination. This witness held the post-mortem examination of the body on 11-4-1950, at 10-30 A. M. and found the following injuries :
(1) Lacerated wound 1″ x 1/4″ x 1″ deep on the left side on head 1J” above the left ear;
(2) Incised wound 1″ x 1/4″ x 1/4″ directed upward and forward on the right side on head, 3″ above the right ear;
(3) Fracture of 2nd and 3rd ribs in the middle on the right side;
(4) Blood clots covering an area 2″ x 1 1/2″ on the left side of head under the scalp;
(5) Depressed fracture of left parietal and left temporal bones combined about an area of 2 1/2″ x 2″; and
“(6) Laceration of the left lobe of brain about 1″ x 12”. Now this medical officer, who was examined as P. W. 15 in the trial, stated in ex amination-in-chief that the injuries could not have been caused by a simple fall from an elevation. On this evidence, the prosecution presses hard for maintaining the conviction of the accused. There would have been some strength in this reliance of the medical evidence if the medical officer had stuck to his statement in ex aminati on-in-chief and had not conceded probabilities which completely fitted in with the defence suggestion. In cross-examination he has said that, if the hammer was made to stand on one end, the injuries 1 and 5 could be possible by a fall from a height of 7 or 8 feet. Again, ha repeated that those two injuries could be possible by a fall on the hammer if it was kept lying flat. The hammer was sent for, and we have seen it ourselves. It is a big and heavy one, and therefore, I am not in a position to say that the statement in cross-examination of the medical officer was made out of some other consideration. Again, the witness has stated that a fall on the cemented floor could cause the fracture of two or three ribs. It is in evidence of one of the prosecution witnesses that the floor was actually a cemented one (vide the evidence of P. W. 1). Looking at the injuries, it appears to me that injuries nos. (1), (5) and (6), which were all on the left side, could be caused by one blow, direct or indirect, and injury no. (4), which also on the left side, could be the result of injury no. (1). The prosecution has no explanation how the deceased could get an incised wound on the head and a fracture of the second or the third rib if the accused had struck the deceased on the head only with a hammer. There is difference between incised wounds and incised-looking wounds. In this connection, I may state that the Sub Inspector found a drum containing lime with blood-stains on it, which were found by the State Serologist to be of human origin. This incised injury could not have been caused, to my mind, by a blow of the hammer which has been produced in this case. The prosecution has not been able to give any explanation how the two ribs of the unfortunate woman could be fractured if she was sleeping peacefully on a cot when she was murderously attacked with a hammer. Accordingly, the medical evidence does not fully support the prosecution; rather, the injuries do not at all rule out the possibility of those being caused by a fall from an elevated place.
8. Let me now examine the circumstances which appear to be against the accused. If the accused had actually concealed the blood-stained clothings and the hammer, then certainly, an inference may legitimately be drawn against her. She has explained the blood stained garment found on her person by stating in Court that it got soaked with blood while she lifted the deceased. She admitted that she had washed it with soap and that the police had seized it a,nd the saree as well. As regards the finding of the hammer, which wss kept concealed in the cattle-shed in a gunny bag, it has been argued by the defence that it was so done by some of the members of the public who wanted to save the family of the accused from harassment by the police. P. W. 10, the informant, stated in his ‘fard-beyan’ that some of the persons who had collected in the house were suggesting among themselves to burn the blood stained clothes. It is not an unusual practice, based on long, standing prejudice against our police system, to remove all clues, which might indicate the commission of a crime, causing apprehension of future harassment. There is no evidence on the record to show that the accused had actually concealed a blood-stained jacket in the tin-shed and blood-stained hammer in the cattle-shed. Here, I may mention that blood, too small for serological test, had been detected in the stains on the hammer. This was unlikely if the hammer was actually used for the purposes of attack. At the same time, this supports the defence case of an accidental fall on the hammer and immediate reaction to throw the back on the opposite direction. In any event, these two circumstances are not so inculpatory as to be incompatible with the innocence of the accused.
9. I shall now discuss the oral evidence produced by the prosecution in this case. On a scrutiny of the evidence, I find that the witnesses have resiled from what they had stated before the Committing Magistrate and have tried their very best to support the defence. I have omitted to mention before that the two women lived in the same house and the accused was treated on the footing of a legally-married wife. Two daughters were born of the deceased and one son of the accused through the same person, Budhram Lodhi (P. W. 9). Budh-ram Lodhi has stated in the Court of Session that he had asked the deceased to take out the drum containing lime from the upper floor. He has further stated that no one told him. that his daughter Chanda (P. W. 11) had seen the accused killing the deceased. The old woman, who is said to have, reported to Motirami Sharma (P. W. 10), that the accused had killed the deceased, was not examined by the prosecution, and no explanation has been given why this important evidence has been withheld. The only thing that we find in the evidence is that she is an old decrepit woman and at present unable to move. There was nothing to hinder the prosecution from applying for examination of the woman on commission. P. W. 2 is a witness who had informed Budhram. about the incident in his house. He had heard about it from one Ramdhari, who, too has not been examined. P. W. 2 has stated in cross-examination that Ramdhari did not tell him how the deceased had died and he, too, did not question him on the point. P. W. 5 is a medical officer. He was approached by Budhram. and P. W. 4 on that very day at 1 P. M. He was merely told that a woman has become unconscious. This witness has stated that he closed the room in order to keep off the large crowd. It has been argued by the defence that some mem-bers of this crowd might have concealed the hammer and the blood-stained jacket to shield the inmates from police suspicion. P. W. 11, tho little girl aged 6 or 7 years, has gone back on her statement made before the Committing Magistrate and has deposed that her mother fell down from fe roof and died and that she had been threatened by the police to make the statement against the accused. About this witness I shall deal presently. Here, I only leave her with the remark that she is capable of making incorrect statements whenever she chooses to do so. In view of this state of the evidence, it can hardly be possible to lay the blame on the accused.
10. Mr. G. P. Shahi, appearing on behalf of the State, has argued that there was motive for this murder and the accused had killed the deceased due to the continuous friction between them for a few months before the occurrence. The fard-beyan does state about the quarrClauses It is stated therein that the two women had been, quarrelling for the last three days and they were not pulling on well with each other. It is also mentioned that the accused used to assault the deceased often. There is no evidence of any previous assault in this case . P. W. 1 has merely stated that the two women used to quarrel with each other before the occurrence. P. W. 3 has deposed that he could not say the state of relation between the two women in their house, but outside they met on ordinary terms. Before the Committing Magistrate he had stated that the two at times quarrelled with each other. P. W, 8, a close neighbour of the deceased’s family, has stated that the deceased never complained to him about her quarrels with the accused. P. W. 9, their husband, has gone so far as to say that there was no quarrel between the deceased and the accused prior to the occurrence. I am not going to place full reliance upon the husband as it is clear to me that he has been trying to save his mistress. I fully believe that, occasionally, the two women quarrelled with each other. There is, however, no material to indicate that the quarrels were of such a violent nature as to furnish a motive for the murder. Quarrels between women living in the same house, placed as they were, wore not at all extraordinary. Indeed, it would have taken two angels, placed as wife and mistress, not to quarrel, and, even then, I have my serioua doubts if any perfect peace could prevail in such a family. In the circumstances, I do not think the prosecution has been able to prove the motive in, this case.
11. The whole controversy centres round the evidence of the child, Chanda (P. W. 11), aged about six or seven years. When she was examined under Section 164, Criminal P. C., on 11-4-1950, a day after the occurrence, she stateolf that she was asleep when Jalwanti (accused) bsat her mother on the head with a ‘martaul’ (hammer). It is not clear whether she had woken up at the time of the actual assault. If she was indeed asleep and if there was only one blow given, then it was not probable for her to see the fatal blow being struck. Before the Committing Magistrate, this witness deposed that she was roused by the sound and that she saw her mother being killed by her ‘mausi-ma’ (aunt), the accused, with a hammer. She further said that the accused took her towards the ‘kotha’ and, on returning to her mother, she again gave another blow with the hammer on the head. I have already shown that, from the injuries on the persons of the deceased, it is difficult to say whether two blows with a hammer were administered on the head. In the Court of Session the witness gave a complete go-by to her previous statements and added that the police had instructed her to say so. She also made some very inconsistent and improbable statements for which she can hardly be relied upon. It may be that according, to the provisions of Section 118, Evidence Act, she was a competent witness to give evid-ence in Court, as, it appears from her deposi- tion, she could understand the question put to-her and give rational answers thereto, but it has justly been laid down in — ‘Darpara Potdarin v. Emperor’, AIR 1938 Pat 153 at p. 158 (A), that the evidence of children is notoriously dangerous unless immediately available and unless received before any possibility oil coaching is eliminated. I would rather go further and advise closer scrutiny of : the evidence of child witnesses before the same is accepted by a Court of law. Kenny has observed in his Outlines of Criminal Law at page 420 (1952 edition) that children arc a most untrustworthy class of witnesses, and it is found from common experience that they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others, although intelligent children are very often acutely observant of facts and events external to themselves and remember them with great accuracy. His observations have been adopted by a Division Bench of the Lahore High Court in ‘Abbas Ali v. Emperor’, AIR 1933 Lah 667 at p. 668 (B). Children, in the age of about seven, are in a stage of maturation when the higher mental processes are forming. They are then, creatures of will, emotion and action and sometimes subjected to hallucinations and illusions. Karl Buhler in his book. The Mental Development of the Child, has said at page 85 : “The ‘fibs’ of childhood are known to every one. A little mite of 3 or 4 will tell us in all seriousness that he has met a bear on his walk, and the like. These things must not be regarded as serious moral lapses, for the child has a vivid imagination and often cannot distinguish memories from events which have been merely imagined.” Dr. Hans Gross, who has beon described by many as the father of criminal research, has set out in his book, Criminal Investigation, 1934 edition, at pages 61-62, the nature and character of evidence given, by children. He has said that in one sense the best witnesses are children of seven to tea years of age as at that time love and hatred, ambition and hypocrisy, considerations of religion, rank, etc., are yet unknown to them. He has, however, pointed out the great drawbacks which have made : men distrustful of the capacity of children. They are apt to say much more from imagination than they actually know. To quote his words, “the child; as yet devoid of principles, places great faith in the words of grown up people; so, if a grown up person brings influence to bear on it, especially some time after the occurrence, the child will imagine it has really seen what it has been led to believe”. At another place the eminent author has remarked as follows :
“The result is the same, when the influence is undesigned. An important event happens; it is naturally much talked of, all sorts of hypotheses are started, there is gossip of what others have seen or might in certain circumstances have seen. ‘If a child, which has itself seen something of the occurrence, hears thesa conversations, they become deeply engraved on its own mind, and ultimately it believes it has itself seen what the others have related’ ” (the underlining (here in ‘ ‘) is mine).
From, the evidence on the record, I am rather inclined to think that this child witness h6ard different versions from, the crowd which had gathered at the time of the incident and drew her own inferences from her imagination that her mother had been killed by the accused.
12. Summing up, therefore, I find that the circumstances are not inconsistent with the innocence of the accused; that the medical evidence supports the theory of death by misadven-ture; that there was no positive motive for the alleged murder; that the witnesses have made-inconsistent and untrue statements from stage to stage, and that the only eye-witness, who is a child of tender years, cannot be believed or trusted implicitly. Accordingly, the appeal is allowed, the conviction and sentence are set aside, and the appellant is discharged from her bail bond.
Jamuar, J.
13. I agree.