( 1 ) THE following judgment of this Court was delivered by Hon'ble Chitra, J. For taking exception to the order of conviction and sentence passed against him by learned Sessions Judge, Shajapur in the matter of Sessions Trial No. 180/89, the appellant has approached this Court by preferring this appeal. Learned Sessions Judge, Shajapur had convicted the appellant for an offence punishable u/s 302, IPC and sentenced him to undergo imprisonment of life.

( 2 ) THE facts giving rise to the prosecution can be stated as hereunder in brief : the appellant was residing in village Pardakhedi along with his wife in the house of his father-in-law Bherulal 3-4 years prior to the date of incident. As per prosecution case in the night of the incident, he was sleeping in the house of Bherulal along with his wife and children. It is the prosecution case that appellant was having suspicion about the character of his wife Lilabai and on account of that, the quarrel took place between them in the night of the incident, art 3. 00 p. m. As per prosecution case the appellant assaulted Lilabai on her head, who was sleeping, with a grinding stone of floor mill. By hearing the noise created by the said act, the daughter of Lilabai and appellant named Rukma, who was sleeping at some distance from them, got up and after seeing her father assaulting her mother she shouted. By hearing her shouts, her grandfather Bherulal came there to whom she told that her father had assaulted her mother on the head by said grinding stone of the floor mill. Bherulal also thereafter shouted and by hearing his shouts prosecution witnesses - Mangilal, Lakhan Chotelal, came there to whom he informed accordingly. They tried to search the appellant but he was not found.

( 3 ) THEREAFTER the FIR was lodged, investigation progressed and appellant was put to trial before the learned Sessions Judge, who after appreciating the evidence recorded by him in view of the arguments advanced on behalf of the parties, accepted the prosecution case as proved and recorded the conviction and sentence against the appellant and that is the subject matter of challenge in the present appeal.

( 4 ) LEARNED counsel Shri Dilip Solanki appearing for the appellant appointed by Legal Aid Committee, was heard so also the Govt. Advocate Shri K. K. Gupta, for the State. Both referred to the evidence on record while canvassing their arguments.

( 5 ) THE prosecution case mainly depends on the evidence of Rukma, who was aged 4-5 years old when her evidence was recorded in the Session trial. Her evidence is the evidence without administering her oath. It is the prosecution contention that her evidence has been corroborated by the evidence of Bherulal, Chotelal, Mangilal, Lakhan and Dr. Vipin Jain. The contention of the defence is that being a child witness, it is not safe to place reliance on her testimony for basing conviction against the appellant. The criticism which has been levelled against the evidence of Bherulal, is that he was having suspicion against the appellant and, therefore, he falsely implicated the appellant in the charge of committing murder of his daughter, on suspicion. The defence contended that the evidence of other witnesses on record does not support the prosecution case to prove the guilt of the appellant. ( 6 ) WE upheld the contention advanced on behalf of the defence for reasons stated hereunder : rukma is a child witness. Her evidence is without oath and being it so, the Court should be on guard while appreciating her evidence. So also the Court should cautiously examine the evidence of Bherulal as he happens to have prejudice against the appellant on account of the quarrels between the appellant and Lilabai, which were caused by the suspicion shown by the appellant in respect of the character of his wife Lilabai who happened to be the daughter of Bherulal (PW. 4 ). Rukma stated in her evidence that in the night of said incident she was sleeping in the courtyard of the house of B

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