Important Point
Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not.

Headnote:(i) Indian Penal Code, 1860—Section 302—Murder—Conviction for—Appeal against—Deceased had extra-marital affairs with accused and gave birth to a child—Difference between them thereafter, accused suspecting deceased having relationship with others also—Accused stabbed deceased to death—Four years old child related to both, was eye witness—Stood the test of cross-examination—Nothing favouring defence could be extracted out of eye witness in her cross-examination—Sufficient corroboration on record ruled out possibility of child witness being tutored—Concurrent findings of lower Courts as to guilt of accused—Conviction and sentence upheld. (Paras 4 to 11)
       (ii) Evidence—Child witness—Appreciation of evidence of—Evidence of child witness cannot be rejected per se—Evidence would require Court to scrutinise with care and caution—Corroboration of testimony is not a rule but a measure of caution—In absence of allegation of tutoring Courts have no option but to rely upon confidence inspiring testimony.
       The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The witness of PW2 cannot be discarded only on the ground of her being of Teen age. The fact of being PW2 a child witness would require the court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not. (Para 5)
       Result : Appeal dismissed.

Judgment

Sethi, J.—Ms. Saroja, deceased had developed intimacy and extra-marital relations with the appellant, as a result of which she gave birth to a male child. After the birth of the child differences arose between the appellant and the deceased. The appellant started suspecting the deceased of having illegal connections with other persons. She was subjected to cruelty and harassment. Unable to bear the cruelty of the appellant, the deceased left the residence of the appellant 8 days prior to her death and started living in the house of his brother Ravi (PW 1). On 22nd September, 1993 the deceased accompanied by Bhavya (PW 2), the female child of Ravi (pw 1), who was about four years of age, went to the village tank in the afternoon for washing the clothes. While she was washing clothes, the appellant came and stabbed Saroja with knife inflicting injuries on her neck, chest and other parts of the body causing severe bleeding resulting in her death. Immediately the child Bhavya (PW2) rushed to the house and informed her parents about the occurrence specifically mentioning that the appellant had stabbed the deceased.

2. On the complaint of Ravi (PW1) FIR was registered against the appellant and investigation commenced. The Tehsildar P.H. Krishnappa (PW 14) prepared the inquest mahazar on the dead body of the deceased and in that process recorded the statement of Bhavya (PW2). She is stated to have made the deposition in Malyalam which was translated to the Investigating Officer in Kannada. During the course of the investigation the appellant made voluntary statement Exhibit P13. In consequence of the disclosure statement made by the appellant, the knife (MO1), shirt (MO5), Lungi (MO6) and Towel (MO7) were recovered at the instance of the accused from his house. After completion of the investigation a charge-sheet was submitted before the Judicial Magistrate who committed the accused to the Sessions Court for standing trial for offences under Section 302 of the IPC. The prosecution examined 16 witnesses. Upon the conclusion of the trial the Sessions Judge found the appellant guilty of the commission of offence under Section 302 IPC and sentenced him to undergo imprisonment for life besides paying a fine of Rs. 1000/. In default of the payment of the fine the appellant was directed to undergo further imprisonment of 30 days. The appeal filed by the appellant was dismissed by the High Court vide the judgment impugned in this appeal by special leave.

3. Before appreciating the rival contentions addressed at the Bar, it has to be noticed that the whole of the prosecution case is mainly based upon the statement of child witness Bhavya (PW 2). The witness was related both to the accused and the deceased. Shardamma (PW3) is the sister of PW1 and wife of the appellant. Deceased Saroja and Smt. Nalini are the other sisters of Ravi (PW 1). Bhavya (PW2) is the daughter of PW1. The deceased was not married and was earlier residing with her parents who died about 4 or 5 years before the date of occurrence. After the death of her parents the deceased started residing in the house of her sister Nalini. For some time she also resided with her brother Ravi (PW1). While deceased was residing in the house of her sister Nalini, the accused took her to his house where they developed intimacy as a result of which a male child was born to the deceased.

4. Both the courts below have concurrently held that deceased Saroja met with homicidal death on 22nd September, 1993 at about 2.00 p.m. near Keremane water tank of Village Kanoor. Relying upon the testimony of PW2 it has been held that the appellant had inflicted the fatal blows on the body of the deceased which resulted in her death. The relationship of the witnesses and the illicit relations between the appellant and the deceased have not seriously been disputed by the learned counsel who appeared on behalf of the appellant as Amicus Curiae. She has, however, stated that i

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Cases Referred (5)