IMPORTANT POINT
Even if discrepancy between evidence of child witness and medical evidence is not given much importance, there are other fatal infirmities in the evidence of child witness relied upon by the prosecution which were not adverted to by courts below. Thus it is a fit case for interference under Article 136 to grant benefit of doubt to the appellant.

Headnote:Indian Penal Code, 1860-Section 302-Conviction of appellant for murdering his relation on a public street due to strained relations-Conviction based on sole testimony of child witness, the son of deceased alleged to be going with deceased-Trial Court and High Court though took caution, but failing to appreciate discrepancies as to place of incident-Child witness saying it was near meat shop of PW3-Police showing near a house of one Sidhu (Para 10)-Discrepancy as to making statement to police-Child saying four five days after incident-Police saying on date of incident (Para 11)-Mention by child that Police Personnel was already there (Para 12)-In FIR by father of deceased, No mention of presence of child at the time of incident (Para 13)-Discrepancy in ocular evidence and medical evidence on number of gun shots-Cumulative effect-Appellant is entitled to benefit of doubt-Appeal allowed-(Evidence Act, 1872 -Evidence of child witness) (Constitution of India-Article 136).
Held : In view of the doubtful features and other infirmities in the prosecution evidence as discussed above, we are of the view that it is not safe to rely on the evidence of P.W. 2 whose evidence needs to be scrutinized with due care and caution. It is, however, unnecessary to probe into the other question whether the ocular evidence is inconsistent with the medical evidence. Though it is a case of concurrent finding by both the Courts resting on the appreciation of evidence, we are of the view that the trial court and the High Court overlooked certain important aspects in the practical application of the rule of prudence and caution which the High Court itself proceeded to apply in appreciating the evidence of child witness. The High Court failed to take note of certain telling factors emerging from the evidence on record. There was no critical appraisal of the evidence of P.W. 2 except focusing attention on two alleged contradictions of no significance and repelling the arguments based on them. Even if the finding that medical evidence does no go counter to the prosecution case is allowed to remain, there are other fatal infirmities in the evidence relied upon by the prosecution which were not adverted to by the High Court. In these circumstances, we are of the view that it is a fit case for interference under Art.136. Accordingly, we hold that the accused is entitled to benefit of doubt and his conviction ought to be set aside. We, therefore, allow the appeal and direct the authorities concerned to release the accused from the prison forthwith. (Para 14)

JUDGMENT

P. Venkatarama Reddi, J.-This appeal by Special leave is preferred by the sole accused in the Sessions Trial No. 583 of 1980 on the file of the Additional District & Sessions Judge, Gorakhpur. The accused was convicted under Section 302 I.P.C. on the charge of murdering his relation by name Hidayat Hussain at about 8 A.M. on 28.6.1980 on a public street. The accused was sentenced to life imprisonment. On appeal the High Court confirmed the conviction and sentence.

2. The prosecution case is that on the crucial day at about 8 A.M. the deceased was going to a meat shop with his son Aizaz @ Guddu (P.W. 2). As they came close to the meat shop, the accused fired a shot from his country-made pistol in front of the house of one Sidhu. The victim collapsed before the meat shop of Achhan (P.W. 3) and succumbed to the injuries then and there. Though some people tried to overpower the accused, he reloaded his pistol and threatened them not to risk their lives. Thereafter, he fled away from the scene. P.W. 1, the father of the deceased, on coming to know of the incident came to the spot immediately. He saw the son of the deceased (P.W.2) weeping by the side of the dead body. His clothes were blood-stained. After some time he got a complaint drafted by one Yusuf and handed over the same in the police station at 9.15 A.M. The Head Constable registered the F.I.R. P.W. 6, the sub-Inspector of police immediately went to the scene of offence, took custody of the dead body after having it photographed and prepared a Panchnama. Thereafter, P.W. 7, the Senior Sub-Inspector, took over the investigation and seized the blood-stained earth, empty cartridge and blood stained Kurta of P.W. 2. On search at the house of accused he found nothing incriminating.

3. Post-mortem examination was conducted by P.W. 5 who was the Medical Officer attached to District Hospital, Gorakhpur, on the evening of the same day. The following ante-mortem injuries were found on the body of the deceased :

"1. Gun shot wound 1-1.2" x 1.2" cavity deep on the right back 9" below the root of the back and adjacent to the mid line. Margins black, contused and inverted wound of entry.

2. Gun Shot wound ½ " x 4/10" x cavity deep on the chest 2" inner to right nipple, margins black everted contused wound of exit. 6 pellets recovered underneath this injury."

4. The Doctor further noted that the injuries were caused by fire arm. On internal examination, he found 8 ounces of clotted blood in the thorax cavity and laceration of right lung at several places. He found one pound of blood in the stomach. According to the doctor, the deceased died due to shock and haemorrhage caused by the fire arm injuries and the death would have occurred instantaneously. P.W. 7 conducted the inquest and recorded the statements of witnesses. He filed the charge-sheet.

5. The motive for the crime as disclosed by P.W. 1 is that the accused was under the impression that the deceased was having illicit relations with the wife of the accused as the deceased was often protesting against the cruel treatment being meted out to her and trying to help her. P.W. 1 also stated that there was some altercation a week earlier whereupon the accused threatened the deceased with dire consequences. The accused and the deceased are related.

6. The two eye-witnesses examined by prosecution are P.Ws. 2 and 3. The eye-witness P.W. 2 Aizaz Hussain was aged 7 years at the time of the incident and 8 years at the time of giving evidence. He was studying in class I in the local school. He gave an account of the incident and the circumstances in which his father was killed. He clearly implicated the accused as assailant. P.W. 3, the meat shop owner turned hostile. However, he supported the prosecution case partly.

7. Therefore, much turns on the evidence of the child witness-P.W. 2. The trial court as well as the High Court were of the view that the testimony of P.W. 2 was clear and trustworthy and reliance could be safely

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2003 Supreme(SC) 44

Cases Referred (1)