IMPORTANT POINT
The court established that the reliability of child witnesses must be carefully evaluated, and a conviction cannot be sustained on their testimony alone without corroborative evidence, especially when significant contradictions and gaps in the prosecution's case exist.

JUDGMENT :

Vipul M. Pancholi, J.

This appeal has been filed by the appellant/convict under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as the ‘Code’) challenging the order of conviction dated 06.11.2015 and order of sentence dated 09.11.2015 passed by learned 10th Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 268 of 2013 arising out of Kazi Mohammadpur P.S. Case No. 313 of 2012, whereby the concerned Trial Court has convicted the present appellant for the offences punishable under Sections 302, 376 read with 511 of the Indian Penal Code (hereinafter referred as the ‘I.P.C.’), whereby the appellant has been sentenced to undergo R.I. for life for the offence under Section 302 of I.P.C. and a fine of Rs.5,000/- has also been imposed, and in default of payment of fine, he has been awarded three months S.I. Further the appellant has been directed to undergo R.I. for five years for offence under Section 376/511 of I.P.C. and a fine of Rs.5,000/- has been imposed and in default of payment of fine, he has been awarded three months simple imprisonment. Both the sentences have been directed to run concurrently.

2. The prosecution case, in brief, is as under:-

“On 14.09.2012, the informant Nikki Kumari went to to domestic work in the house of Dilip Kumar leaving her mother Kiran Devi and younger sister Aarti Kumari, aged about 7 years, in the house. Her mother was suffering from Diabetes. Since last one month, she was bed-ridden. When she came to her home at 9 O’clock, her sister Aarti Kumari told her that at 8:00 A.M. accused Munna Sah came to her home and lifted the saree worn by her mother and laid down on her body. Her sister saw this incident and she went to narrate the story and came back. In the meanwhile, fearing getting caught by the people of the muhalla, the accused pressed the neck of her mother and at 3 O’clock, as a result of which, she died at her home.”

3. After recording the fardbeyan of the daughter of the deceased namely Nikki Kumari, a formal F.I.R. was registered. Thereafter, the Investigating Officer carried out the investigation and, during the course of the investigation, he had recorded the statement of the witnesses, prepared the Inquest Panchnama and sent the dead body of the deceased for the post mortem. After the investigation was over, the Investigating Officer filed the chargesheet against the appellant/accused before the concerned Magistrate Court. However, as the case was exclusively triable by the Court of Sessions, the concerned Magistrate Court committed the same to the Sessions Court where the same was registered as Sessions Trial No. 268 of 2013.

4. During the course of the trial, the prosecution examined ten witnesses and also produced the documentary evidence. Further statement of the accused under Section 313 of the Code was recorded. After conclusion of the trial, the Trial Court passed the impugned order, as observed hereinabove. Against the said order of conviction, the appellant/convict has preferred the present appeal.

5. At the outset, it is pertinent to note that when the matter was called out, the learned counsel for the appellant has not remained present and as the appeal is pending since the year 2015 and the appellant/convict is in custody since 27.09.2012, this Court had no option but to proceed with the matter. We, therefore, asked learned Advocate Ms. Surya Nilambari to assist the Court and she has been appointed as Amicus Curiae for the aforesaid purpose. Hence, we have heard learned Advocate Ms. Surya Nilambari for the appellant/accused as Amicus Curiae and Mr. Bipin Kumar learned A.P.P. for the Respondent-State.

6. Learned counsel Ms. Surya Nilambari mainly contended that none of the independent witnesses has supported the case of the prosecution and they have turned hostile and the case of the prosecution rests only upon the deposition of PW-8 Aarti Kumari who has claimed that she is an eye-witness to the occurrence in question. It is submi