JAIN, J. - (1.) THESE two appeals are directed against the judgment and order dated 26. 10. 2002 passed by Additional Session Judge No. 1 (Fast Track) Jaipur City, Jaipur in session case No. 8/2002 whereby the learned Trial Court has convicted and sentenced the accused-appellants Brij Bihari and Smt. Primila for the offence under Section 302 IPC to imprisonment for life and a fine of Rs. 1000/- and in default of payment of fine to further undergo for rigorous imprisonment of 6 months, under Section 120 (B) IPC to undergo the imprisonment for life and a fine of Rs. 1000/- and in default of payment of fine to undergo six months rigorous imprisonment and also under Section 201 I. P. C. to undergo five years rigorous imprisonment and fine of Rs. 500/- and in default of payment of fine to further undergo 3 months rigorous imprisonment. The D. B. Criminal appeal No. 6/2003 has been filed on behalf of the accused-appellants Brij Bihari and Smt. Primila through counsel whereas D. B. Criminal Jail Appeal No. 1653/2003 has been filed through jail by accused Brij Bihari.
(2.) THE brief facts of the case are that one Ramadhar Singh lodged a first information report on 30. 7. 2000 at Police Station Mahesh Nagar, Jaipur wherein it was alleged that the in-laws of his son Shreeniwas are at Jaipur. Shreeniwas had gone to Jaipur for earning his livelihood. He received last letter dated 7. 4. 2000 written by Shreeniwas. THEreafter, his wife Smt. Primila and his sons Sunil and Kamlesh came to village in the month of May. He asked them about Shreeniwas. Smt. Primila told that due to rush of work he could not come. After sometime Smt. Primila, went at Jaipur. When he did not receive any information about Shreeniwas, he sent his son-in-law Vijay Singh at Jaipur but Shreeniwas was not found. It was also alleged that on 13. 4. 2000 a report of missing of Shreeniwas was lodged by Smt. Primila at the instance of Vijay Singh. When they did not hear about Shreeniwas then he, Ramneti, Vijay Singh and Smt. Manki came at Jaipur. Smt. Primila did not give satisfactory reply. THEn he met with Sunil- son of Shreeniwas who told him that his mother, maternal uncle Rajesh and Brij Bihari have killed his father i. e. Shreeniwas. It was further stated by Sunil that their mother thereafter went Alwar along with Brij Bihari. THEy were also accompanied with their mother. It was also alleged that his son Shreeniwas is missing since last more than two months and Smt. Primila is not giving satisfactory reply. THErefore, he believes that his son has been murdered by Smt. Primila, Rajesh and Brij Bihari. On the basis of this information, a case under Sections 302, 201, 120-B I. P. C. was registered and investigation commenced. During the investigation the police prepared a site plan and took the sample of blood and bones of Shreeniwas which was sent for examination. During investigation, it came on record that a skeleton of a man was recovered on 6. 5. 2000 and on the same, a case No. 27/2000 was registered under Section 174 Cr. P. C. THEreafter, other parts of the body were searched and recovered on 8. 5. 2000. THE postmortem was conducted. During investigation the Investigating Agency came in knowledge that Shreeniwas was living in the house situated at Narendra Nagar along with his wife Smt. Primila and two sons Sunil and Kamlesh. THE accused Brij Bihari was tenant in the house belonging to his father. THEre was illicit relationship in between Smt. Primila and Brij Bihari and due to it a quarrel and beating took place in between Brij Bihari and Shreeniwas. THE Investigating Agency also collected evidence that on 14. 4. 2000 the landlord of the deceased Shreeniwas was out of station and on that day at about 8 pm Shreeniwas came in his house. THEreafter, Rajesh and Brij Bihari reached at about 9 pm and met Primila. All the three went in the underground of the house and killed Shreeniwas by way of strangulation. THEy put the dead body of the deceased in the Gudari and took the same alongwith other articles of the house with them and vacated the house. THEy put the dead body in the vacant plot nearby their house. After completion of investigation the police filed a challan against accused persons Brij Bihari, Rakesh Kumar, Smt. Primila and Smt. Prabhawate. The case was committed to the court of Sessions Judge, Jaipur City, Jaipur and it was transferred for disposal to the court of Additional Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur. The learned Trial Court framed charges against accused persons namely Rakesh Kumar, Brij Bihari, Smt. Primila for the offence under Sections 302, 302/120-B and 201 I. P. C. and against accused Smt. Prabhawate under Section 201 I. P. C. The accused persons denied the charges and claimed trial. In support of the case, prosecution examined as many as 39 witness and produced documentary evidence Ex. P1 to Ex. P63. Thereafter the statement of the accused persons were recorded under section 313 Cr. P. C. wherein they denied the allegations and stated that they have falsely been implicated in the matter. Learned Trial Court, after hearing all the parties, vide impugned judgment dated 26. 10. 2002 while acquitting the co- accused persons namely Rakesh Kumar and Prabhawate, convicted and sentenced the appellants as mentioned above. Learned counsel for the appellant has argued before us that there is no eye-witness in the present case and the case is based on circumstantial evidence. He submits that there is no link evidence also so as to prove offence against the appellants beyond reasonable doubts. The learned counsel for the appellants further submits that the learned Trial Court relied upon the statement of PW3 Sunil-son of deceased Shreeniwas who is only ten years of age, therefore, he was not in a position to understand the things correctly and as such his statement should be discarded. He further argued that even PW3 Sunil does not state in his statement that his mother Smt. Primila gave beating to his father. PW3 has admitted in cross-examination that he was taught by Public Prosecutor before giving statement. He has cited number of judgments of circumstantial evidence and has tried to convince us that in the present case there is no link evidence so as to connect the accused with the crime. He relied upon Ram Prasad vs. State of U. P. and Another (1), Umrao Singh vs. State of Rajasthan (2), Ashish Batham vs. State of Madhya Pradesh (3), Manoj vs. State of Rajasthan (4), Bakshish Singh vs. State of Punjab (5), Rahman vs. The State of U. P. (6), Hukam Singh vs. The State of Rajasthan (7), Gambhir vs. State of Maharashtra (8), Ramesh Chand vs. State of Uttar Pradesh (9), Padala Veera Reddy vs. State of Andhra Pradesh and Others (10), Harendra Narain Singh etc. vs. State of Bihar (11), State of Haryana vs. Ved Prakash (12), Hargovandas Devrajbhai Patel and Others vs. State of Gujarat (13) and Mujeeb & Another vs. State of Kerala
(3.) LEARNED counsel for the appellants further argued that conviction on the basis of child eye-witness is not safe. He has referred cases of Subhash Chand vs. State of Rajasthan (15), Banwari Lal vs. State of Rajasthan (16), Chhagan Deme vs. The State of Gujarat (17), Ratan Singh vs. State of Madhya Pradesh (18), State of M. P. vs. Gujra and Others (19), The State of Bihar vs. Kapil Singh (20), Caetano Piedade Fernandes and Another vs. Union Territory of Goa, Daman & Diu, Panaji Goa (21) and Bahadul vs. State of Orissa Learned counsel also submitted that the conviction under section 201 I. P. C. is also bad in law in the facts and circumstances of the present case. He has relied upon the judgment given in the case of Raghav Prapanna Tripathi and Others vs. State of Uttar Pradesh (23), and in the case of Smt. Lata and Another vs. State of Goa On the other hand, the learned Public Prosecutor has supported the order of conviction and sentence passed by learned Trial Court. He submits that there are strong circumstances against the accused appellants to connect them with the crime. He also submits that there is no illegality or perversity in the order passed by the Trial Court and the learned Trial Court has not committed any illegality in convicting the appellants on the basis of testimony of the child witness PW3 Sunil. ;