The court held that a child witness is not competent to testify if he does not understand the sanctity of truth and contradicts himself in his testimony.

B. L. YADAV, J.

( 1 ) THE appellant Ramua alias Ram Lal has preferred this criminal appeal against his conviction under S. 302, I. P. C. and sentence for life imprisonment and under S. 201, I. P. C. and sentence for four years rigorous imprisonment. The learned Sessions Judge has convicted the appellant by the judgment and order dated 10/05/1983 in Sessions Trial No. 146 of 1982.

( 2 ) THE prosecution story as contained in the F. I. R. is that the appellant who was resident of village Pali, P. S. Jakhlaun, district Lalitpur, was living separately from his father Tiju, who lodged the first information report (Ext. ka-1) that his daughter-in-law namely Smt. Suhagrani aged about 27 years was missing for the last seven days. She was wearing a Saari and some glass bangles etc. The appellant was living separately from his father with his wife Smt. Suhagrani the deceased and two children. It was alleged that somehow the appellant was not satisfied with his wifes conduct and on 9-6-1982 he sent to the Jungle of Pali with his wife and two sons on the pretext to collect dried wood and murdered the wife there with an axe (Kulhari ). Her dead body was left in the Jungle after the murder. Only some bones were recovered. On the pointing out of the appellant on 16-6-82, when the first information report is alleged to have been lodged, the blouse, glass bangles, hairs and some torn clothes and dhoti containing blood stains were recovered (vide Ext. Ka-2 ). On the same date some bones were also recovered on the pointing out of the appellant (vide Ext. Ka-3 ).

( 3 ) THERE is no eye-witness except one child named Bihari the son of the appellant aged about 3 to 4 years (P. W. 1 ). About whom the learned Sessions Judge has given a certificate to the effect that the child witness is not understanding the sanctity of the truth and understands the question with difficulty after repetition, and oath was not administered.

( 4 ) P. W. 2 was informant-Teju and P. W. 3 is Suresh Kumar who was scribe of the first information report. P. W. 4 is Kamta, the father of deceased Smt. Suhagrani. P. W. 5 Gajendra Singh before wham the alleged extra judicial confession was made by the deceased on 16-6-82, Kashi Ram is P. W. 6. P. W. 7 is Ram Karan Singh A. S. I. the Investigating Officer. The statements of these prosecution witnesses have been relied upon by the learned Sessions Judge. The conviction and sentences, as aforesaid have been passed.

( 5 ) SRI Prakash Chandra Srivastava the learned counsel for the appellant argued the appeal that except P. W. 1 Bihari, the son of the appellant aged about 3 to 4 years, about whom a certificate was given by the learned Sessions Judge that the child witness is not understanding the sanctity of the truth and that he understands the question in difficulty after the repetition, there was no other eyewitness and the case was based on circumstantial evidence. The statement of P. W. 1 Bihari cannot be relied upon, as in the cross examination he has denied the version which he has said in examination-in-chief. He has stated in the cross-examination that no body was having Kulhari and he has again said that he does not know kulhari and again contradicted that his father and mother have not gone to pick up the small pieces of wood in the forest. He again said that they have come together on that date in the mid day at about 12 noon. In the last sentence of his statement he stated that when the kulhari was placed before him he does not know what is this? This indicates that he did not see either Kulhari or anything else in the occurrence and cannot be relied upon.

( 6 ) SIMILARLY P. W. 2 the father of the appellant was declared hostile and he was also not an eye-witness. P. W. 3 was scribe of the first information report which does not disclose the occurrence, except that the daughter-in-law of the informant was missing for the last seven days.

( 7 ) P. W. 4 is the father of the deceased and before him some pieces of blouse, some gl