Fairness in identifying accused persons is crucial for establishing guilt beyond a reasonable doubt.

JUDGMENT :

Abhay S. Oka, J.

FACTUAL ASPECTS

1. The appeal is by accused nos.9, 2 and 1 respectively, who have been convicted for the offences punishable under Section 148 and Section 302 r/w Section 149 of the Indian Penal Code (IPC). There were 29 accused named in the charge sheet, out of which accused nos.1, 2, 5, 7, 9, 15, 17 and 20 were convicted by the Sessions Court and the remaining 21 were acquitted. By the impugned judgment, the High Court has upheld the conviction of the appellants.

2. There was a political rivalry between the family of the deceased Raghunath Singh and some of the accused persons who belong to the Ahir community and who had formed a party known as Azad party. The incident is of 16th April 1976. PW-6 Shiv Raj Singh, who is the brother of the deceased Raghunath Singh, lodged First Information Report (FIR). A group of Ahirs attacked the deceased. According to the prosecution case, PW nos.2, 3 and 4 were the eyewitnesses. The Trial Court discarded the testimony of PW-2 but believed the testimony of PW-3 Krishna, the minor, who was the daughter of the deceased, and PW-4 Kanwarbai, who is the mother of the deceased.

CONTENTIONS OF THE PARTIES

3. The learned counsel appearing for the appellants submitted that PW-3 is a child witness whose evidence is required to be scanned very cautiously. Inviting our attention to the evidence of PW-3 Krishna and, in particular, her cross-examination, she submitted that her testimony cannot be held to be reliable, particularly when the identification of the accused made by the witness in the Court is highly doubtful. Moreover, PW-4 could not identify a single accused in the Court and, therefore, it was unsafe to rely upon her testimony. She also pointed out that there was a delay of 3 days in sending the FIR to the learned Magistrate. There was a political rivalry between the family of the deceased and the political party to which the accused belonged and, therefore, during the period of these three days, false implication of the accused must have taken place.

4. Learned senior counsel representing the State urged that perusal of the answers given to the preliminary questions put to the child witness (PW-3) shows that the witness had good intelligence and understanding. He submitted that though she correctly identified the accused no.1 as the son of Ramchander, by mistake she mentioned the name of Modu (acquitted accused), who was also the son of one Ramchander. He submitted that this is a minor discrepancy which is not sufficient to discredit the version of PW-3. He submitted that PW-4 Kanwarbai named five persons as the accused. He submitted that PW-4 was not able to identify the accused with reference to their names. He submitted that this can happen easily due to lapse of time. He would, therefore, submit that the conclusions drawn by the High Court and the Sessions Court, as regards the guilt of the appellants, cannot be faulted with.

REASONS AND CONCLUSIONS

5. We find that the prosecution case depends only on the testimony of PW-3 Krishna and PW-4 Kanwarbai. The age of PW-3 was 12 years at the time of the recording of her evidence. Evidence of PW-3 cannot be rejected only on the ground that her age was 12 years. However, being a child witness, her evidence needs a very careful evaluation with greater circumspection considering the fact that a child witness can always be easily tutored. Therefore, we have made a careful scrutiny of her version. In the examination-in-chief, she stated that she saw that 30-35 persons were assaulting her father (the deceased). She stated that she identified persons, namely, Raghunath (accused no.1); Shyama (accused no.8); Bhavana (Bhawani) – accused no.20; Modu and Chaturbhuj (accused no.15). There are two accused by the name of Modu (accused no.2 and accused no.14). Though she named Shyama (accused no.8), she described him as Bhavana’s (Bhawani’s) brother. As can be seen from the names of the accused, Bhavana is the son of Kana Ahir and accused