IMPORTANT POINTS
Not putting incriminating circumstances to accused u/s 313 CrPC is a serious lacuna in the proceedings.
Evidence of child witness must be reliable and inspiring confidence to merit acceptance.

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. The appellant was convicted by Additional Sessions Judge Kota, Rajasthan for offence punishable under Section 302 of the IPC. He was sentenced to life imprisonment.

2. In short, the case of the prosecution is that on 24/2/1997, the appellant cut the throats of his children Rakesh and Rajkanta with a blade in the house of his in-laws where he was staying for his treatment. He was suffering from tuberculosis. According to the prosecution, this incident was witnessed by Banwari, the brother-in-law of the appellant. Banwari informed about it to his brother Kajod, who had come from the market. Kajod found Rakesh dead. Rajkanta was alive and was in pain. Kajod took her to the doctor and the doctor declared her dead. Kajod lodged FIR. Investigation was started. The appellant was arrested. After completion of the investigation, the appellant came to be charged under Section 302 of the IPC. In support of its case, prosecution examined 14 witnesses. PW-2 Banwari is the eye-witness. He is a child witness. His evidence is material to the prosecution. The appellant pleaded not guilty to the charge. He stated that he was falsely implicated in the case, because his relations with his wife’s family were strained.

3. Shri Santosh Mishra, learned counsel appearing for the appellant submitted that the entire case rests on the testimony of a child witness. The child witness’s evidence has to be carefully scrutinized and, only if it is found reliable, it can be accepted. He submitted that PW-2 Banwari’s evidence does not answer the test laid down by this Court in numerous judgments and, hence, no reliance can be placed on him. In support of this submission, counsel relied on Rameshwar s/o. Kalyan Singh v. The State of Rajasthan AIR (39) 1952 SC 54, Panchhi & Ors. v. State of U.P. (1998) 7 SCC 177, Ratansinh Dalsukhbhai Nayak v. State of Gujarat(2004) 1 SCC 64 and Raj Kumar v. State of Maharashtra(2009) 15 SCC 292. He submitted that the entire incident appears to be inherently improbable. If throats of two children were cut with a blade, they would have raised loud cries and that would have brought the neighbours to the room. Counsel submitted that there are inconsistencies in the evidence of the witnesses. The story that PW-2 Banwari saw the incident through the hole of the door is difficult to digest. Counsel submitted that recovery of blade from the possession of the appellant is also not proved. Motive is also not established. In the circumstances benefit of doubt must be given to the appellant, who is in jail for about 19 years.

4. Shri Milind Kumar, learned counsel for the State, on the other hand, submitted that child witness PW-2 Banwari inspires confidence. It is established that the appellant was alone in the room with his children and, hence, none else but he can be held responsible for their murder. Counsel pointed out that pertinently on the clothes of the appellant, blood was found. The blood group of those stains matched with that of the blood found on the clothes of deceased Rajkanta. This indicates that the appellant killed his children. Counsel submitted that, therefore, the conviction and sentence of the appellant be confirmed.

5. The post-mortem notes make it clear that the throats of the children were cut. We have gone through the evidence rather minutely because we felt that the approach of the trial court and the High Court was not right. We shall therefore briefly refer to the evidence.

6. There is no challenge to the prosecution case that at the material time, the appellant was staying in his in-law’s house with his children. PW-1 Kajod stated that on the date of incident at about 2.00 p.m., the appellant sent him to bring Kachodi and Jalebi. Within half an hour, he came back. Since deceased Rakesh had high fever, the appellant told him to bring a tablet from the shop. When he came back with a tablet, he saw a crowd gathered in front of his house. The appellant was holding a blade in hi