IMPORTANT POINT
Evidence of child witness cannot be rejected unless it is unreliable or is tutored.

JUDGMENT

Adarsh Kumar Goel, J.

This appeal has been preferred against the conviction and sentence of the appellants under Section 302/34 of the Indian Penal Code (IPC) for the murder of Mishribai for which they stand sentenced to life imprisonment apart from conviction and sentence of appellant Gul Singh @ Gulia under Section 376 IPC and conviction of appellants for other offences as appearing from the operative part of the order of the trial Court and the High Court which is clear from the impugned Judgment of the High Court as follows :

“The appellants have preferred this appeal against the judgment dated 07/10/1999 of the Vth Additional Sessions Judge, Indore, passed in Session Trial No.331/1998 by which the appellants have been convicted under Sections 366, 368 read with Section 34 of the Indian Penal Code to rigorous imprisonment for ten yeas and fine of Rs.1,000/-, in default of payment of fine to rigorous imprisonment of six months, under Section 376(2)(g) of the IPC to rigorous imprisonment for ten years and fine of Rs.1000/- in default of payment of fine to further rigorous imprisonment for six months under Section 302/34 to imprisonment for life and fine of Rs.1,000/-, in default of payment of fine to further rigorous imprisonment for six months; and, under Section 307/34 to rigorous imprisonment for five years and fine of Rs.500/-, in default of payment of fine to rigorous imprisonment for three months. All the substantive sentences have been directed to run concurrently. The operative portion of the High Court judgment is as follows:

……The Appeal of Gul Singh @ Guliya is dismissed and his conviction and the sentence passed against him are maintained except that his conviction u/s 376 (2)(g) is altered to Sec. 376(1) and the punishment awarded thereunder is maintained; the appeal as regards appellant No.2 – Roomal s/o Dalsingh Bhil, No.3 Gulab s/o Thavriya Bhil and No.4 – Mohan s/o Gobriya Bhil is partly allowed. While their conviction u/s 366, 368/34, 302/34 and 307/34 and the sentence awarded thereunder are maintained, their conviction u/s 376(2)(g) is set aside.”

2. Case of the prosecution is that on the night intervening 24th /25th of May, 1998, while Girdhari had gone to the farm of his employer for driving the Tractor and other family members were asleep in his house, at 02.00 mid-night, the accused persons with a view to kidnap Parubai (PW 3), arrived, armed with weapons like Dharia, Falia and Lathi and started assaulting Setulbai, Mishribai, Mohan and Sunderlal. As a result of the deadly assault, Mishribai succumbed to the injuries on the spot, Sunderlal (PW 6) sustained a fracture in his hand, Mohan (PW 1) sustained injury on his head and both shoulders and Setulbai (PW 5) also sustained two incised wounds and two lacerated wounds,. Thereafter the accused persons dragged away Parubai (PW 3). Later, she was subjected to rape.

3. Accordingly, First Information Report (FIR) was lodged by Mohan (PW 1) and the accused were apprehended. Though in the FIR only Gul Singh was named, in the statement of Sunder Lal (PW 6) to the police all other accused were immediately named. After investigation, the accused was sent up for trial. 4. A post mortem was conducted on the body of Mishribai and the death was found to be homicidal with following injuries :

“(1 )Incised wound on the forehead to nose on right side 2” x ½” x muscle deep;

(2) Incised wound on the face over the upper lip 1” x ½” x cutting of the lip;

(3) Incised wound on the chin 2” x ½” x bone deep;

(4) Penetrating wound on the right side of neck 1” x ½” x 1” cutting carotid artery.”

5. Injured Mohan (PW 1) was found to be having following injuries : “(1) Incised wound extending from neck to right shoulder to the left 15 x 1 cm x ?

(2) Incised wound over right ear extending to the skull 8 cm x 1 cm x ?

(3) Incised wound 2 cm x ½ cm x ? anterior to the left ear;

(4) Incised wound 2 cm x 1 cm x ? on occipital region;

(5) Incised wound 3 cm x 1 cm x ?