The reliability of a child witness and the application of Section 34 IPC in establishing common intention and participation of the accused in the commission of the offences.

Bhaskar Raj Pradhan, J.

1. The testimony of a 12 year old child, a victim of crime, is sought to be questioned by the Appellants who have been convicted on the ground that since he is but a child, corroboration is a must. Quite evidently this is not the correct proposition in law. Should the victim’s deposition be held to be wanting merely because of the fact that he is a child although the same inspires confidence? The answer is obviously in the negative.

2. The First Information Report (FIR) (exhibit-1) lodged on 11.04.2016 by the father of the victim-P.W.1 (first informant) after his son-the victim who had gone missing since the morning of the day before was found by beat Constables of the Singtam Police Station at Singtam would initiate an investigation by the Mangan Police. Resultantly a charge-sheet would be filed and thereafter charges framed on 30.08.2016 against Md. Ibraj Alam (Appellant in Criminal Appeal No. 19 of 2017) as well as Md. Tabrej Alam alias Roshan (Appellant in Criminal Appeal No. 20 of 2017) by the Sessions Judge, North Sikkim at Mangan (Learned Sessions Judge). Charges under Section 363/34 IPC; 342/34 IPC; Section 323 IPC and Section 307 IPC would be framed against Md. Ibraj Alam and against Md. Tabrej Alam alias Roshan (jointly the Appellants) charges would be framed under Section 363/34 IPC, 342/34 IPC. The trial would result in conviction of both the Appellants who would prefer the present Appeals against the common judgment of conviction rendered by the learned Sessions Judge on 19.04.2017 convicting Md. Ibraj Alam under Section 363/34 IPC as well as Section 323 IPC and Md. Tabrej Alam alias Roshan under Section 363 IPC. Accordingly Md. Ibraj Alam and Md. Tabrej Alam alias Roshan would be sentenced to undergo simple imprisonment for a period of three and a half years and to pay a fine of Rs.10,000/- (Rupees Ten Thousand) each for the offence under Section 363/34 IPC and in default to pay the amount of fine to undergo further simple imprisonment for a period of 3 months. Md. Ibraj Alam would also be sentenced to undergo simple imprisonment for a period of 6 months under Section 323 IPC. The period of imprisonment was to run concurrently and the incarceration already suffered by the Appellants was to be set off against the sentence imposed. The total amount of fine payable was directed to be applied for the payment of compensation to the minor victim.

3. Mr. Zangpo Sherpa, Learned Counsel for the Appellants would seek to assail the impugned judgment as well as the order on sentence both dated 19.04.2017 rendered by the Sessions Judge on the ground that the Learned Sessions Judge would convict the Appellants in spite of the fact that the sole testimony was that of the victim-a child witness of 11 years of age although he himself had come to the conclusion that there were minor contradictions in the victim’s statement.

4. Mr. Zangpo Sherpa would also draw the attention of this Court to the deposition of the two beat Constables - P.W.5 and P.W.6 and their admission that it was not at the instance of the victim that Md. Ibraj Alam had been apprehended. Mr. Zangpo Sherpa would also submit that strangely the victim was admittedly not crying when Md. Ibraj Alam was apprehended which would be unnatural considering the fact that there was an allegation that Md. Ibraj Alam had allegedly attempted strangulation upon the victim a few hours ago. The fact that the child did not raise any alarm even while seeing the Police Officers is a cause of suspicion which therefore, ought to have led the Learned Sessions Judge to seek corroboration of his statement as has been held by the Supreme Court in re: Hamza v. Muhammedkutty alias Mani & Ors. v. State of Kerala, (2013 ) 11 SCC 150:

“30. The learned counsel for the State is right that the consistent version of PW 1 is that A-1 and A-2 have committed murder of the deceased. But the High Court has rightly relied on the observations of this Court in Suresh v. State of