- (1.) THIS is an appeal by the State against the judgment of the learned Sessions Judge, Pali, dated the 4th January, 1964, acquitting the three accused respondents Roop Singh, Mst. Dhapu and Naingir in connection with the murder of one Jugtidan. The first accused was charged under Sec. 302 I. P. C. while the second one Mst. Dhapu was charged under sec. 302 read with sec. 109 I. P. C. and the third accused Naingir was charged under Sec. 302 read with Sec. 118 I. P. C.
(2.) THE prosecution story as disclosed by the eye witnesses P. W. I Mst. Chhagani, and P. W. 8 Asia is briefly as follows. Chhagani is a daughter of the deceased and was ten years of age while Asia is also a minor of the same age but was a complete stranger and was admittedly engaged as a labourer by the accused Naingir for working at his well on the day of the incident, that is the 24th January, 1963. Mst. Dhapu was the wife of the deceased Jugtidan while the accused Roopsingh was carrying on illicit intimacy with Mst. Dhapu. THE remaining accused Naingir appears to have a well near the house of the deceased in village Kundli, police station Gudaondla. It is alleged that on the 24th Jan. , 1963, at about sunset time. Roopsingh and Naingir accused alongwith P. W. 8 Asia aged about ten years came to the house of the deceased. It was meal time. Naingir asked Mst. Dhapu to make a few 'roties' for them with the flour which he had brought with him. Dhapu was already making breads for the family at the time. Dhapu immediately started doing so. Naingir sat by her side near the kitchen while Asia was sitting outside the door on the Chabutara. Naingir had his food while sitting near Dhapu. A bread or two was also served to Asia. It is then said that after having had his meal, Naingir and Dhapu came out for a little while Asia who was sitting at the door saw them, but according to Asia they had no talk between themselves. THEreafter both Naingir and Dhapu accompanied by Roopsingh went into the house. At that time Jugtidan deceased was sitting near the fire place. Dhapu had in the meantime served food to her husband before she had gone out with Naingir. Roop Singh accused then is alleged to have caught hold of the neck of the deceased with one of his hands and to have pressed his other hand against his (deceased's) mouth. THE deceased was thus felled down. THEn Naingir held both of his hands while Dhapu sat on his legs. THE deceased is said to have struggled for some time but in vain and he was thus strangulated to death. THE version of Chhagni further is that on seeing all this she raised a loud outcry but her mother Dhapu slapped her and threatened that she would be severely beaten if she cried further. According to her, her mother then enquired from the accused Roopsingh whether Jugtidan deceased had been killed to which Roopsingh replied that he had been. THEreafter all these three persons, that is, Roopsingh, Naingir and Dhapu lifted the dead body of Jugtidan from the room and placed it outside the house where a camel was sitting. THEreafter Dhapu asked Roopsingh and Naingir to leave the place, it having been arranged between them that she would then raise an alarm. When Roopsingh and Naingir had left the place, Dhapu did raise an alarm for her son Bhanwaria P. W. 13 asking him to come and see what had happened to his father. Bhanwaria then came from the house of Murardan P. W. 12 which is situate to the north of the deceased's house and where it is said he had been sent by Mt. Dhapu after the two accused Roopsingh and Naingir had come to his house that evening for taking his lesson from one of the sons of Murardan. After the outcry had been raised by Dhapu, P. W. 11 Zordan, P. W. 12 Murardan and certain other persons of their family reached the spot and found that Jugtidan had died. THEy lifted the corpse from the place where it was laying and took it into the house. According to the evidence of Zordan, Murardan's son Devidan had immediately told them that he had seen the accused Roopsingh coming out of the house of the deceased and that thereby a doubt had been raised in their minds that Roopsingh had killed Jugtidan. We further have it from the prosecution witnesses including Zordan that the accused Naingir and P. W. 8 Asia had been sitting at his house while they had heard the outcry from Dhapu and having heard the same, they rushed to Jugtidan's house and Naingir and Asia were also with them. This is in brief the prosecution story as related by the eye-witnesses. It appears that the news of Jugtidan's murder had been carried by P. W. 12 Murardan to the Sarpanch of village panchayat Umkali though Murardan himself shrewdly enough does not utter a single word about it but we have it from P. W. 7 Ratansingh who was a clerk in the said village panchayat and whose evidence we see no reason whatsoever to doubt that Murardan had come to Umkali and informed the Sarpanch that Jugtidan had died. Thereupon the Sarpanch had asked him and the Ward Panch Rawatram P. W. 16 and one other person Achlaram to go to the spot and prevent the corpse from being taken away for cremation. It was in this manner that Rawatram P. W. 16 accompanied by Ratansingh P. W. 7 happened to go to village Kundli where Jugtidan deceased lived. Having gone there, he found that the news of Jugtidan's death was correct and thereafter he got the first report Ex. P-8 written by one Zorawardan who has not been produced by the prosecution in evidence. The gist of this report is to the effect that on the previous night (the exact expression used in Hindi is "kale RAAT RA" Jugtidan son of Karni-dan Charan had suddenly died, that he was not ill, and that Jugtidan and his wife Dhapu were not on good terms because the latter was a woman of very bad character and she wanted to live as the wife of the accused Roopsingh which everybody knew. It was, therefore, said in this report that the dead body of the deceased had been detained. It was further said that the death of Jugtidan had occurred in very suspicious circumstances, and, therefore, an early investigation was necessary. This report reached Motilal, the Sub-Inspector of Police Station Gudaendla at 4 P. M. on the 25th January, 1963. As it was not clear from the report made to him whether the deceased Jugtidan had died as a result of some offence committed against him, the Sub-Inspector commenced a proceeding under sec. 174 Cr. P. C. and sent the dead body of the deceased for a post-mortem examination to the Bangur Hospital at Pali. The Officer in charge of that hospital Dr. Jethmal P. W. 17 performed the post-mortem examination on the 26th January, 1963 at 11-35 A. M. vide his report Ex. P-10. He found the following external injuries on the body of the deceased Jugtidan: (1) An abrasion 1/4" x 1/8" on the right side of the neck anterolateral aspect 1", above the right clavicle. (2) Two scratches each 1/5" x 3/8" on the right side neck postcro-lateral aspect. (3) Two bruises each 1/8" x 1/8" on the right side neck lateral aspect 3" below the right ear lobula. (4) A bruise 1/8" x 5" extending on the neck and upper part of the chest and both the shoulders. (5) An abrasion 1" x 3/4" on the right side back lateral aspect, 4" above right Iliac Crest. (6) Bruises five in number 1/2" x 1/4" each below injury No. 5. (7) Two abrasions each 1/8" x 1/8" on the right side knee anterior aspect, (8) Neck: All around the neck there were bruises and swelling with redness. Post-mortem staining was also present on the neck. On dissection of the neck, the doctor found that there was ecchymosis all around the muscles of the neck and further there was a fracture of the hyoid bone on the left side and the larynx and the trachea were deeply congested. According to the doctor, the cause of the death of Jugtidan was asphyxia due to strangulation. All the three accused were arrested on the 27th January, 1963, and while they were in the custody of the police, two of them, namely, Naingir and Dhapu are alleged to have shown their willingness to make a confessional statement. Accordingly Naingir was produced before the Munsiff Magistrate, First Class, Pali, on the 4th February, 1963, and the statement made by him is Ex. P-12 while Mst. Dhapu was produced for a like purpose before the Additional District Magistrate, Pali, on the 5th February, 1963, and her statement is Ex. P-10. The learned trial judge has held that these statements are exculpatory so far as the persons making them are concerned and has therefore held them to be inadmissible in evidence. We snail have occasion to say some thing about these at the proper place. It is in these circumstances that all the three accused were challaned under sec. 302 I. P. C read with certain other sections for the murder of the deceased Jugtidan and after the usual committal proceedings, they were put on trial in the court of the learned Sessions Judge Pali who, as already stated, has acquitted them. All the accused completely denied to have had anything to do with the offence or offences with which they were charged. Roopsingh pleaded that he had been implicated by one Dalpatsingh who was on terms of enmity with him in collusion with the police. Naingir's defence was that P. Ws. Zordan and Murardan had falsely implicated him in this crime as he did not allow them water from his well. As for Mst. Dhapu the wife of the deceased, her case was that her husband was an opium eater and he had died on account of the pain which he had developed in his stomach: She further pleaded that her daughter Chhagani had been tutored by the relations of her husband to give false evidence against her. In this appeal by the State, it is strenuously contended before us by the learned Deputy Government Advocate that the learned trial Judge has fallen into a grave error in acquitting the accused and thereby a serious miscarriage of justice has occurred. We have therefore, to see whether the case against the accused stands proved beyond all reasonable doubt on the evidence which was produced by the prosecution in this case. We may state at the very outset that there is abundant evidence on the record to show that Mst. Dhapu, wife of the deceased was a woman of rather loose character and that at the material time and for some time prior to that she had been in illicit intimacy with one of the accused Roopsingh. There is also evidence on the record to show and which we see no reason to doubt that some six to seven months before the present occurrence took place Dhapu had made an application before a Magistrate, at Pali that she wanted to live as the wife of the accused Roopsingh but thereafter she was some how prevailed upon by her husband Jugtidan to go back to his house. (See the evidence of P. W. 6 Lumbia and P. W. 16 Rawatram ). This might have furnished a motive for the accused Roopsingh or Mst. Dhapu or either of them to see that the deceased had better be removed from the path of illicit love on which their hearts seem to have been set. But accepting that to the fullest extent possible, we do not see that that would furnish any motive for the third accused Naingir to be a party to such a design. Be that as it may, it would not be possible for us to convict all or any of these accused of the murder of the deceased Jugtidan merely because there was motive for one or more of them to have encompassed his death. The further question that remains to consider and that is the crucial question is whether on the evidence led by the prosecution the case against all these accused or any one of them is proved beyond all reasonable doubt. And this brings us to the evidence of the two eye-witnesses upon whom the case for the prosecution principally rests. It is contended by the learned Deputy Government Advocate appearing for the State that the evidence of these witnesses should have been accepted as unquestionably correct by the learned trial Judge and that we should also accept the same as true and that if we do so, the case against all the accused is proved to the hilt. At the same time we should like to observe here that if the evidence of these two witnesses cannot be accepted as substantially correct, then the entire remaining evidence produced by the prosecution would not be enough to convict the accused of the crime with which they have been charged. We have given the gist of the evidence of these two witnesses while narrating the story for the prosecution and we do not think that any useful purpose will be served by our repeating the same at this place. What we should like to point out here however is that both these witnesses were children of rather tender age. The learned trial Judge took the precaution of putting a few preliminary or introductory questions to test them to that their intelligence and regard for truth and he found that they were both intelligent and clever enough to understand what they were talking about and that they also appreciated the sanctity of an oath and consequently he had no hesitation in administering oath to them. No infirmity therefore attaches to the evidence of these witnesses on this score only, and as we have already adverted to, if their evidence can be accepted at its face value, we should have no hesitation in convicting the accused. But there is a further aspect of the evidence of such witnesses which we cannot ignore and it is this that it has been laid down by the courts time and again that the evidence of child witnesses is dangerous in the extreme and that they live not unoften in a climate of ''make believe" so that if they are inducted into the belief that a certain event or events has or have happened in a certain manner, whether they have themselves seen the same or not, then they easily mistake what they had been asked to believe for what they may not have seen themselves and are persuaded to testify to or speak of such things as if they have seen them for themselves while what has really happened is that they have been made or coached to think that things did happen or must have happened in a given manner. Thus it was observed in Manni vs. Emperor (1) as follows "there is no more dangerous witness than a young child. Any mistakes or discrepancies in their statements are ascribed to innocence or failure to understand, and undue weight is often given to what is merely a well-taught lesson. Children have good memories and no conscience. They are easily taught stories and live in a world of make-believe so that they often become convinced that they have really seen the imaginary incident which they have been taught to relate. " It was, therefore, held that the evidence of a child should be accepted with great caution. Again in Abbas Ali vs. Emperor (2) it was laid down relying on the Outlines of Criminal Law" by Dr. Kenny, Downing Professor of the Laws of England, Cambridge University "children are a most untrustworthy class of witnesses, for, when of a tender age, as our common experience teaches us, they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others, and are greatly influenced by fear of punishment, by hops of reward, and by desire of notoriety. " It was further laid down that "when considering the evidence of childwitnesses these observations should not be lost sight of, although each case would depend upon its particular own facts and circumstances. " Again, in Darpan Potdarin vs. Emperor (3) it was held that it would be quite unsafe to convict on the evidence of a child (who incidentally was ten years old in that case also) unless it was immediately available and it was received before any possibility of coaching was eliminated.
(3.) THERE are certain observations to be found on this subject in the decision of the Privy Council in Mohammed Sugal Esa vs. The King (4) which may be reproduced here with advantage "in England where provision has been made for the reception of unsworn evidence from a child it has always been provided that the evidence must be corroborated in some material particular implicating the accused. But in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a Court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law. " It is in the light of the law that has been so laid down and with which we respectfully agree, if we may say so, that we are called upon to scrutinise the evidence of the child witnesses in this case. The learned trial Judge has contrasted the evidence of these witnesses as given at the trial from that which they gave before the committing Magistrate on a number of points and has found that no unhesitating reliance can be placed upon their testimony. Thus while the evidence of both these witnesses at the trial was that after the deceased Jugtidan had been felled down by Roopsingh, the accused Naingir had held him by both of his hands and sat on his chest and Mst. Dhapu had sat on the legs of her husband a little below the knees and pressed him down; they had, however, both stated before the committing court that it was Mst. Dhapu who had sat on the chest of the deceased and held his hands while Naingir had seated himself on his knees. When they were confronted by their statements made on this aspect of the matter before the committing court, Chhangani stated that she had made that statement by mistake while Asia explained that he had said so under a threat from the accused while in the next breath he further went on to the length of saying that he had never said before the committing court that Naingir had sat on the legs of the deceased. We should like to pause for a moment to point out that a contradiction on what seems to us to be a very salient feature of the murderous assault on the deceased would not have easily transpired if both these witnesses had themselves seen the occurrence with their own eyes. Again Mst. Chhangani said in her statement at the trial that Roopsingh accused had never slapped Asia during the course of the incident while she had stated in her statement before the committing court {ex. D-3) that he did slap Asia and asked him to mind his own business. Chhangani also stated at the trial that her mother had not called out to her brother Bhanwaria saying that the deceased was having a pain in his stomach. When confronted with her statement on this point as given before the committing Magistrate to the effect that her mother had shouted out to Bhanwaria saying that his father was having pain in his stomach, all that she said was that she had made that statement in the committing court by mistake. She also denied the statement made by her in the committing court that Roopsingh accused had throttled her father with his right hand and gagged his mouth with his left hand and what she stated at the trial was that she had never given that kind of statement. Again, she had stated before the committing court that first Asia and Naingir had come to their house and thereafter her father Jugtidan came but she denied at the trial that she had ever made such a statement before the committing court. According to this witness's statement before the committing court it was all darkness in the house when the accident took place during the course of which her father was killed; but she changed her statement at the trial on this point and would have us believe that there was a chimney burning therein. Having regard to these contradictions and certain others on which the learned trial Judge has relied, it is difficult to find fault with him if he was not prepared to accept Mst. Chhangani as a straight forward witness. There are certain infirmities generally surrounding the case for the prosecution and to these we shall have occasion to refer presently. But before we do so, we may also briefly deal with the evidence of the other eye-witness Asia. As already stated, Asia had been engaged as a labourer by Naingir for the first time on the day of the incident and he is alleged to have accompanied the latter to the house of the deceased. On arriving there, he had sat on the Chabutra outside the house and after he and Naingir had their evening meal the incident had happened. His statement is more or less similar to that of Chhagani and as we have already pointed out that like Chhagani he had stated in the trial court that after the deceased had been felled down by Roopsingh having caught him by the neck, Naingir caught hold of his hands and sat on his chest, Dhapu seated herself on the legs of her husband down the knees and pressed hard. Like Chhagani he had however earlier stated in the committing court that it was Mst. Dhapu who sat on the chest of the deceased and Naingir had seated himself on bis legs. Again, in his statement before the committing court Ex. D-4 this witness had stated that when they had reached the house of the deceased, Chhagani though awake was lying down on a cot but in his statement at the trial he denied that he had ever said that Chhagani was so lying down and he maintained that he was only arranging her bed at the time. According to this witness before they had their meal, Murardan's son Jasia had come to the house of the deceased and this Jasia is said to be a full-grown adult and further Jasia is stated to have stayed there for some time. On this point, however, he is not supported by Chhagani who has unequivocally stated that no outsider apart from two or the accused had come to their house. We further have it from this witness that when Roopsingh caught hold of the deceased from the back, there was no talk whatsoever between them. Earlier, however, in the course of his statement in the committing court this witness had deposed that at that time Jugtidan had asked who it was who had held him and Roopsingh replied that it was he. When confronted with these two contradictory statements, the witness replied that he had not made the statement before the committing court which is attributed to him. After the deceased had been killed and Roopsingh accused had left from the former's house, Dhapu is said to have raised a shout. Now at that time what this witness had stated at the trial was that having heard that outcry he did not go to the house of the deceased again though on this very point the version of the witness before the committing court was that having heard the outcry he and Naingir went back to the house of the deceased. On being confronted with both these contradictory statements, the witness replied that he had never said so before the committing court but again resiled from this statement and said that at that time the accused Naingir and Murardan had come there and that they tried to massage the body of the deceased and went to the length of suggesting that the latter was alive up to that time. This is completely contradictory to the case of the prosecution at the trial that by the time Jugtidan deceased had been carried out of the house and his body had been placed at the site where it was later found by Murardan and others he had already died. ;