Important Points
A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto.
Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 to section 300 IPC cannot be given to him.

judgment

Dr. Arijit Pasayat, J. —

1.Leave granted.

2.Challenge in this appeal is to the order passed by a Division Bench of the Andhra Pradesh High Court dismissing the appeal filed by the appellant questioning correctness of his conviction for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short IPC) and sentence of imprisonment for life and fine as imposed by learned IVth Additional Sessions Judge, (F.T.C.), Anantapur.

2.Background facts in a nutshell are as follows :

The marriage between Dhanalakshmi (hereinafter referred to as deceased) and the accused took place 14 years prior to the date of incident. During the wedlock, they were blessed with three children, namely, Golla Yelugu Adilakshmi (PW2), Golla Yelugu Anjaneyulu (PW3) and Gollal Yelugu Venkatesu (LW7). At the time of marriage, the accused was doing cultivation. After marriage the deceased and the accused lived happily for some years. Due to addiction to vices, he started ill-treating his wife, demanding her to get money from her parents. About six months prior to the occurrence, the accused beat and caused fracture to the hand of the deceased and sent her along with her children to her parents house. He again took them back by promising to look after them well and kept his family at Pamidi. Ten days prior to the occurrence, the accused sold his autorickshaw and cleared his debts and asked his wife to get money from her parents to purchase another autorickshaw. But the parents of the deceased did not comply with the said demand. On 20.6.2002 at about 2 A.M. while the deceased was in the house, there was exchange of hot words and quarrel between the accused and deceased. This happened in the presence of their children. Suddenly accused hacked the deceased on her back with a sickle and the deceased fell down and the accused once again hacked on the neck and left ear of the deceased causing severe bleeding injuries. Accused went to the house of LW3 and confessed the offence before him. LW3 went and informed the same to the father of the deceased, PW1. PW1 lodged a complaint before the police and on its basis a case in Cr.No.35/2002 was registered for the offence punishable under Section 302 IPC by PW11, who conducted inquest over the dead body of the deceased in the presence of PWs. 5, 8 and LW16: examined some witnesses and recorded their statements; seized the clothes and blood stained mat covered under MOs. 1 to 4; prepared rough sketch under Ex.P.7, forwarded the material objects to the Forensic Science Laboratory, Hyderabad for analysis through the Judicial First Class Magistrate, Gooty and arrested the accused on 25.6.2002, and at his instance MOs 5-sickle and 6-bag were recovered. PW6, the Medical Officer, who conducted autopsy over the dead body of the deceased opined that the deceased would appear to have died due to hemorrhage and shock due to cut laceration over the throat involving the major blood vessel. After completion of the investigation, charge sheet was filed.

3.In order to establish the accusations the prosecution examined 11 witnesses and marked several exhibits and MOs. The accused did not adduce any oral or documentary evidence. He however pleaded innocence.

4.After analyzing the evidence of eyewitnesses PWs2 and 3, and finding that they are corroborated by the evidence of PWs 1 and 7, the appellant was found guilty.

5.In appeal, the appellant took the plea that PWs. 2 and 3 should not have been pleaded as they are of tender age and were child witnesses. The High Court found that PWs. 2 and 3 were children of the deceased and the accused and there was no reason as to why they would falsely implicate their father. The High Court also discarded the plea that they were under the influence of PW1, their maternal grandfather. As noted above, the appeal was dismissed.

6.In support of the appeal, learned counsel for the appellant submitted that reliance should be placed on the evidence of PWs 2&3 and in any event offence under Sectio