ORDER :

1. Leave granted.

2. The appellant is the married sister-in-law (Jethani) of the deceased, and aggrieved by her conviction under Section 302, 34 IPC and Sections 3 and 4 of the Dowry Prohibition Act sentencing her for life with a default stipulation.

3. The deceased died in the matrimonial home on 16.07.2008 in about one and a half years of the marriage suffering 95% burn injuries. PW-2, the younger brother of deceased aged about 11 to 12 years is the sole eye witness.

4. Shri Tripurari Ray, learned counsel appearing on behalf of the appellant, submitted that she had taken a specific defence in her statement under Section 313 Cr.P.C. that she resided in her matrimonial home, which was separate and at a distance. The appellant, according to PW-2, is stated to have stuffed cloth in the mouth of the deceased after which she was set on fire by other accused. This crucial allegation was never put to the appellant under Section 313 CrPC thus depriving her of a valuable opportunity of defence which vitiates her conviction. It is next submitted that PW-2 is not a reliable eye-witness inviting attention to certain contradictions in his evidence. In addition, reliance has been further placed on the evidence of DW-3 in support of the separate mess and residence of the appellant from her parental home.

5. Shri Sandeep Singh, learned counsel appearing for the State, submitted that PW-2 was a reliable witness. He is the brother of the deceased. There is no reason to disbelieve him and nothing has been elicited in the cross-examination to discredit his reliability as a witness including his presence. The allegation that the deceased was set on fire is fully corroborated by the medical evidence. The matrimonial residence of the appellant was not at such a distance so as to make her presence improbable, merely being 40 to 50 steps away.

6. We have considered the submissions. Apart from the appellant, the husband of the deceased namely Pramod, his brother Neetu and mother have also been made accused. The appellant is the wife of another brother of the husband of the deceased namely Mappal – who is not an accused.

7. Criminal jurisprudence does not hold that the evidence of a child witness is unreliable and can be discarded. A child who is aged about 11 to 12 years certainly has reasonably developed mental faculty to see, absorb and appreciate. In a given case the evidence of a child witness alone can also form the basis for conviction. The mere absence of any corroborative evidence in addition to that of the child witness by itself cannot alone discredit a child witness. But the Courts have regularly held that where a child witness is to be considered, and more so when he is the sole witness, a heightened level of scrutiny is called for of the evidence so that the Court is satisfied with regard to the reliability and genuineness of the evidence of the child witness. PW-2 was examined nearly one year after the occurrence. The Court has, therefore, to satisfy itself that all possibilities of tutoring or otherwise are ruled out and what was deposed was nothing but the truth.

8. The evidence of a child witness and the manner of its consideration has been dealt with in State of M.P. vs. Ramesh, (2011) 4 SCC 786, as follows:

“14. In view of the above, the law on the issue can be summarised to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.”

9. The allegation that the appellant stuffed cloth in t