The reliability of child witness testimony and the sufficiency of circumstantial evidence in establishing guilt under section 302 of the Indian Penal Code.

JUDGMENT RAJEEV KUMAR SHRIVASTAVA, J. – The instant Criminal Appeal is preferred under section 374(2) of Criminal Procedure Code, challenging the judgment dated 4-9-2008 passed in Sessions Trial No. 01/2007 by Sessions Judge, Vidisha, whereby the Trial Court convicted the appellant for commission of offence punishable under section 302 of Indian Penal Code and sentenced to undergo Life Imprisonment and fine of Rs. 5000/-, with default stipulation.

2. The facts necessary to be stated for disposal of the instant appeal are that on 4-10-2006 Dr. M. K. Jain (PW-2), who was posted and on duty in District Hospital, Vidisha, had informed vide Ex.P/5 that on the said date at about 3.45 pm deceased Kusumbai had been brought dead by her husband Babulal (appellant). On this information merg report was registered at Merg No. 65/2006 and after investigation and recording statements of the witnesses it was found that the present appellant Babulal @ Pattu had committed murder of his wife Kusumbai and, therefore, FIR (Ex.P/22) was registered at Crime No. 708/2006 by Police Station Kotwali, District Vidisha for the offences punishable under sections 302, 498-A of Indian Penal Code. It was gathered by the investigating officer during the course of investigation and recording statements of the witnesses that appellant-accused Babulal doubted his deceased wife’s character and used to cause marpit with her. On the date of occurrence the appellant had beaten his wife in a closed room. This beating was witnessed by Rupali, daughter of appellant aged 7 years, who was present in the room. When deceased became unconscious due to the beating, the appellant-accused took her to the hospital where she was declared brought dead. From the place of occurrence two pieces of black coloured broken straps of watch, two toe rings of white colour, out of which one was broken, some pieces of broken bangles were seized and seizure memo (Ex. P/14) was prepared. Vide Ex.P/18 one watch of black dial, over which R-ROMEX-QUARTZ was written and belt whereof was broken from one side and belt of other side having black colour was attached with the watch, was seized. Dr. M. K. Jain (PW-2) including two other Dr. R. S. Sharma and Dr. Smt. Nirmala Tiwari, had conducted the post-mortem of the dead body. According to the Post-Mortem report (Ex P-6) the death of Kusumbai was homicidal in nature and had occurred on account of cardio respiratory arrest due to shock and internal traumatic haemorrhage as a result of multiple injuries on different parts of the body.

3. Consequently the police proceeded to file the charge-sheet under sections 302, 498-A, 342 of Indian Penal Code against the appellant and the learned Trial Court framed charge against the appellant for the offence punishable under section 302 of Indian Penal Code.

4. The prosecution examined as many as 18 witnesses to establish its story, whereas defence did not choose to examine any witness, though the appellant-accused abjured his guilt. However the Trial Court arrived at the conclusion that the prosecution duly established its story and there is significant material available against the appellant which is sufficient to convict him for the offence punishable under section 302 of Indian Penal Code. Consequently vide the impugned judgment the appellant was held guilty and convicted under section 302 of Indian Penal Code, with punishment to undergo Rigorous Life imprisonment and fine of Rs. 5000/-. Against his conviction, the appellant has preferred this appeal.

5. Learned counsel for the appellant argued that, there is no eye witness except PW-14 Rupali, who is a child witness aged about 7 years, on whose testimony alone the prosecution case rests. There is a lack of circumstantial evidence in the present case and the evidence given by PW-14 Rupali is not corroborated by any other independent witnesses. The evidence given by Rupali is very shaky and appears to be tutored. It is further argued that the witness of the seiz