IMPORTANT POINT
Evidence of child witness can form basis of conviction if reliable and convincing.

JUDGMENT

NAVIN SINHA, J.

The appellants stand convicted under Section 120-B, 302, 34 IPC and sentenced to life imprisonment. The appellant Satish has been further convicted under the Arms Act.

2. The deceased, husband of appellant Anita, was fatally assaulted inside his house at about 1.30 a.m. in the night intervening 31.03.2007/01.04.2007. PW-2 Sahil, the son of the deceased, went and informed PW-1 Sunita who lived next door. The police report was lodged by PW-1 the next morning at about 9:00 a.m. The postmortem of the deceased was conducted on 01.04.2007 by PW-10 Dr. Suman Tanwar, which revealed eight incised wounds and seventeen penetrating incised wounds.

3. Ms. Prachi Bajpai, learned counsel for the appellants Satish and Kishan, submits that there was an unexplained delay of eight hours in lodgment of the First Information Report giving sufficient time for manipulation and false implication. PW-1 Sunita deposed in cross-examination that about 15-20 villagers had come on hearing the commotion, but none of them has been examined. PW-2, a child witness aged about 12 years, admitted not knowing the appellants since earlier. He claims dock identification for the first time, more than six months later, without any test identification parade held in the meantime. It cannot be safely relied upon as the witness may have had only a fleeting opportunity to see them during the alleged occurrence. Any recovery from them is irrelevant in absence of a forensic report with regard to the alleged weapons of assault. The conviction is, therefore, not sustainable and liable to be set aside.

4. Shri Mahabir Singh, learned senior counsel appearing on behalf of the appellant Anita, submitted that the primary material against her is an extra judicial confession stated to have been made to PW-4 on 08.04.2007, about a week after the occurrence. The entire edifice of a conspiracy, with the assistance of Ramesh, to engage hired killers, collapses with his acquittal by the High Court. If the extra judicial confession was not acceptable in part, it had to be rejected completely. It could be held to be discredited for some purpose, and yet accepted as evidence for other purpose. Reliance was placed on Palvinder Kaur versus State of Punjab, AIR 1952 SC 354. The Trial Court and the High Court have, therefore, materially erred in basing conviction by relying on the same as incriminating evidence. There was no reason for the appellant to make such disclosure nearly eight days later, when all along she was living with the family. PW-4 was a property dealer. The extra judicial confession evidence was manipulated by him because if the appellant was sent to jail, her children being minors, the witness could grab her property after the demise of her husband. PW-20 Satpal Singh, the Investigating Officer, has furnished no explanation why the statement of the appellant was not recorded under Section 161 Cr.P.C. when she was at home till 08.04.2007 and made an accused on that date. PW-4 stated that after the confession he accompanied the appellant to the police station at 5:00 p.m. But PW-7 states that the appellant was arrested from home on that date. No question was put to the appellant under Section 313 Cr.P.C. with regard to the extra judicial confession. PW-16 Umesh Singh, the photographer, deposed that PW-18 Sombir, ASI informed him to come to the place of occurrence at 2.00 a.m. and he reached at 4.00 a.m. But PW-18 is completely silent on this aspect. Naturally, there must have been a first version of the occurrence disclosed to the police before lodging of FIR the next morning, which has been concealed by the prosecution. No investigation could have started before institution of a police report. PW-2 was a child witness aged about 12 years. It would be highly unsafe to rely on his evidence alone to sustain conviction without corroboration, relying on State of Delhi versus Vijaypal, (1980) 1 SCC 582. The witness was staying with PW-4 after the occurrence. H