The need for corroboration of evidence from child witnesses and the requirement to prove the motive for a murder.

JUDGMENT :

A.K. Mishra, J.

The appellant has assailed his conviction under Section 302 of the Indian Penal Court (hereinafter referred to as “I.P.C.” in brevity) and sentenced to undergo imprisonment for life in judgment dated 31.08.1999 passed by learned 2nd Additional Sessions Judge, Berhampur in S.C. No. 22 of 1998.

2. Narrated in nutshell, the prosecution case is that on 25.10.1997 at about 3.00 P.M. deceased Dhobuni Khatua had gone to inspect her paddy field in her village Kantapada. She did not return till 5.00P.M. On being asked by nieces, informant Bhrama Khatua (P.W.5) went to search and found the cadaver of the deceased floating in the Nala. He brought out the dead body and laid on the ridge of the tank and found the missing of the gold ornaments from the neck and ear. He suspected that somebody might have taken away the ornaments after committing murder. At 9.30 P.M. he lodged F.I.R. before the A.S.I., Beguniapada Out Post, which was entered vide Station Diary No.386. The said report was registered under section 302/379 of the I.P.C. at Kodola P.S. at 10.00 P.M. vide Kodola P.S. Case No. 141 of 197.

In course of investigation the Investigating Officer (hereinafter referred to as “I.O.” in short) examined the witnesses including two child witnesses, i.e., P.Ws. 1 and 2 on 25.10.1997. No clue was found. Inquest over dead body was made and on 26.10.1997 at 6.30A.M. Vide Exhibit-5 Postmortem was conducted by the doctor P.W.11. One Amar Khatua (P.W.4) was examined by the I.O. after ten days. The statements of P.Ws 1, 2 and P.W.4 were recorded under Section 164 of the Criminal Procedure Code (hereinafter referred to as “Cr.P.C.” in brevity) on 13.11.1997. Police took P.W.1 to the village of accused Budiali and got the accused identified through her. Test Identification Parade (hereinafter referred to as “T.I. Parade” in short) was conducted on 12.12.1997 and another child witness P.W.2 also identified the accused-petitioner. Accused was arrested on 5.11.1997 at 9.00 P.M. One Gamuchha was seized from the accused which was alleged to have puton at the time of incident by the accused. After completion of investigation charge sheet was submitted. Cognizance was taken under Sections 302/379 of the I.P.C. After commitment to the Court of Session, accused-petitioner faced trial for the above offences.

Accused abjured his guilty in defence.

3. Prosecution has examined thirteen witnesses whereas defence examined none. P.W.4 is a witness, who had seen the accused in and around the spot prior to the occurrence. P.Ws. 1 and 2, two child witnesses, had seen the occurrence of accused putting the deceased into the Nala. P.W.5 informant is the husband’s brother of the deceased. P.W.6 is the daughter of deceased but has not implicated the accused. P.W.8 is the husband of deceased, who was not present in the village on the date of occurrence. P.W.9 is the scribe of F.I.R. P.W.7 is the co-villager, who accompanied the informant and had recovered the dead body. P.W.3 is the constable who took the dead body for postmortem. P.W.10 is the witness to seizure and zimanama. P.W.11 is the doctor, who conducted postmortem. P.W.12 is the I.O. P.W.13 is the Judicial Magistrate, who conducted Test Identification Parade (hereinafter referred to as “T.I. Parade” in short) in respect of the accused on 12.12.1997. Fifteen documents were exhibited including the F.I.R., P.M. report, spot map, seizure list, T.I.Parade report and statements of three witnesses under Section 164 Cr.P.C.

Learned trial court relying upon the evidence of child witnesses P.Ws. 1 and 2 convicted the accused under Section 302 of the I.P.C., while acquitting him of offence under Section 379 of the I.P.C. According to the trial court, the child witnesses had not seen the accused committing theft of gold ornaments and nothing was recovered from the possession of the accused. Accordingly, he found accused guilty under Section 302 of the I.P.C. and passed sentence as stated above.

4. Learned couns