The conviction based solely on a child's testimony is insufficient if discrepancies undermine its reliability, necessitating corroborative evidence.

JUDGMENT :

Per Ananda Sen, J.

These criminal appeals are directed against the conviction and sentence of both the appellants vide judgment of conviction dated 16.07.2011 and order of sentence dated 19.07.2011 passed by learned 1st Additional Sessions Judge, Giridih in Sessions Trial No.50 of 2006, whereby the appellants have been convicted under Sections 302/34 and 201 of the Indian Penal Code and they have been sentenced to undergo R.I. for life for the offence punishable under Sections 302/34 of IPC further to undergo R.I. for two years each under Section 201 of IPC.

2. Learned counsel for the appellant submitted that entire case hinges on the testimony of the child witness aged about 5 years, but if his evidence is scrutinized properly, it would be clear that he had not seen the second part of the occurrence, thus, the reliance upon his testimony by the Trial Court to convict the appellants is bad in law. As per the appellants, save and accept the child witness there are no other witness, who had seen the occurrence. The testimony of all the other witnesses were hearsay, who had gathered the information from the child witness. If the testimony of the child witness is demolished, automatically the testimony of all the other witnesses have to be brushed aside. He further submits that non-examination of the Investigating Officer has caused prejudice to the appellants as neither the place of occurrence has been proved nor the weapon by which the deceased was assaulted was proved or recovered. Learned counsel for the appellants submits that the informant, who is P.W.-3, in his cross-examination has admitted that he is an accused in the case of murder of father-in-law of Mukesh Hazra [appellant in Cr. Appeal (D.B.) No.548 of 2011], that being so, there is high probability of false implication of these appellants. The child witness has stated that the deceased was first assaulted with the handle of the motor pump, but surprisingly the Doctor, who had conducted the postmortem did not find any injury on the face of the deceased, which creates a doubt about the correctness of the statement of the child.

3. Learned A.P.P. for the State submitted that a child of five years has seen the offence committed these appellants. The child witness has stated that these appellants have first assaulted the deceased with the handle of the pump and thereafter threw the child in the pond. The postmortem report corroborates the fact that boy died due to drowning. The child witness has stated that he had seen the entire occurrence and there is nothing in his testimony to disbelieve him. It is the case of the prosecution that on the basis of the evidence, these appeals have to be dismissed.

4. The F.I.R. is at the instance of P.W.-3. The F.I.R. was lodged under Sections 302/201/34 of IPC. As per the prosecution case, the son of the informant who was aged about 6 years was playing near the pond. Kamal Hazra (Child witness) was also present there. Both the accused persons were irrigating their field when it is alleged that the son of the informant was disrupting the water supply by touching the diesel pump. The aforesaid act of the son of the informant caused annoyance to the appellants, as a result of which they assaulted the son of the appellant with the handle of the pump on his head, thereafter, he was thrown in the pond. The son of the informant was searched when Ruplal Hazra (child witness) son of Shital Hazra informed him about the entire incident. The body was recovered from the pond thereafter.

5. On the aforesaid fardbeyan, Bengabad P.S. Case No.116 of 2005 was registered under Section 302/201/34 of IPC. The police after investigation filed chargesheet under Section 302/34 and 201 of IPC. Cognizance was taken and the case was committed to the Court of Sessions.

6. As the appellants pleaded not guilty, charge was framed under Sections 302/34 and 201 of IPC and they were put on trial. Six witnesses have been examined in this case by the prosecution, who