KAN SINGH, J. - (1.) THIS is a joint appeal by five accused appellants against their conviction and sentences for various offences, under secs. 396, 398 and 365 I. P. C. passed by the learned Additional Sessions Judge, Gangapur City, by his judgment dated 31-8-70. The sentences awarded were life imprisonment for the offence under sec. 395, 7 years rigorous imprisonment for the offence under sec. 398 and for the offence under sec. 365 each of the accused was awarded seven years rigorous imprisonment together with a fine of Rs. 2,000/-, in default one year's rigorous imprisonment.
(2.) ON the night between 23rd and 24th June, 1969 some miscreants came to the Nohra of PW 1 Girvarlal in village Dargavan, Tehsil Mandar. Girvarlal was sleeping in his 'nohra' along with his nephews PW 2 Mohanlal aged 14 and one Jagdish Prasad on three cots. About 11. 30 P. M. Girvarlal was aroused when two persons who had guns with them flashed their torches at him. ON seeing them Girvarlal was frightened and, therefore, he remained lying on the cot. Then he saw that 6 persons had entered into the 'nohra*. The miscreants had surrounded all the three cots. Then they accosted Girvarlal and commanded him to accompany them to his house. They further asked him to keep quiet lest he would be shot dead. Girvarlal was terrified and he accompanied the miscreants- He went to the house in which his brother Hiralal and his wife were sleeping. Girvarlal called his brother and asked him to open the door. When the door was opened all the miscreants entered into the house. They then asked Girvarlal to light a lantern, which he did, and then all of them ransacked the house. Various articles and some ornaments were taken possession of by the miscreants. Girvarlal was asked to tie a bundle which he did. Girvarlal was then taken to his shop and the miscreants carried away some pieces of cloth and cash as also some ready- made clothes from there. They asked him to produce gold and money, but Girvarlal could not and accordingly they carried away the boy Mohanlal with them. ON the way many of the articles were dropped by the miscreants. Mohanlal was carried by the miscreants to a jungle. ON the way the miscreants came across a truck and they asked the driver to stop it. The truck stopped but then the occupants who were Police people opened fire at the miscreants. The miscreants returned the fire. Mohanlal took cover behind a tree, but the miscreants were able to escape with Mohanlal. ON the following day there was again an encounter between the Police and the miscreants. There was exchange of fire. ONe of the miscreants was hit and was injured. At this the miscreants surrendered themselves and the police arrested them. Mohanlal too was found with them at the time the miscreants surrendered themselves to the police. From the accused Teekam the police recovered some ornaments and articles at the time of his arrest. The accused were kept in the Police Station Bari. They were got identified by P. W. 2 Mohanlal and P. W. 1 Girvarlal. Girvarlal identified three accused; Ramdayal son of Brijlal, Ramdayal son of Chhatarsingh, and the accused Nahne. Accused Mohammad and Teekam were not identified by him PW 2 Mohanlal identified all the five accused. The articles that were recovered by the police from the accused Teekam were identified by Girvarlal at a test parade. The articles are mentioned in the recovery list Ex. P. 10 dated 28 6-69 The list of test identification is Ex. P. 4 dated 17-7-69. The prosecution case thus depended on the direct evidence of P. W. 1 Girvarlal and P. W 2 Mohanlal as also on the evidence of recovery of the articles as per list Ex. P. 10 which were subsequently identified by Girvarlal P. W. 1 both at the test parade and in the court. There is further the evidence of P. W. 7 Ramchander and P W. 12 Ravindra Kumar about the encounter and the consequent arrest of the miscreants and of the recovery of P. W. 2 Mohanlal We have been taken through the record. Learned counsel for the appellants submitted that there was no satisfactory evidence for holding that it were the accused appellants who had gone to the house of Girvarlal or that they had committed any dacoity. Learned counsel further submits that even the case of abduction is not proved. In the alternative, he argues that, if at all, only an offence under section 363 I. P. G. was made out against the accused. At any rate, according to learned counsel, the sentence of imprisonment for life was not warranted as the accused had treated Mohanlal well and had even served him with 'halva' when he was in their custody. It will be seen from the above that the prosecution case rests : (1) on the direct evidence of PW. l Girvarlal and PW 2 Mohanlal, and (2) on the recovery of articles as per list Ex. P. 10. So far as the statement of PW. 1 Girvarlal is concerned, he has been able to identify only three of the miscreants ; other than Mohammad & Teekam. The articles have been recovered from the accused Teekam only. P. W. 2 Mohanlal had identified all the accused. So far as identification of the accused by Girvarlal is concerned, we find it difficult to accept it. He would have as believe that when the dacoits entered the house there was already a lantern burning though its wick was considerably lower and the miscreants asked him to just put it on fully, but in his police statement the witness has stated that the miscreants had got a lantern fetched from a house and then it was lighted. Further he has stated that the miscreants were flashing torches. That may be so, but we cannot readily accept the version that with the flashing of the torches Girvarlal would be able to identify the miscreants so as to mark their features. The miscreants would not be flashing the lights on themselves. Any way, there is the statement of P. W. 2 Mohanlal which is a forthright one though Mohanlal does not prove any looting. It appears to us that it is really a case of boy aged 14 being abducted obviously with the object of extorting ransom from his relatives otherwise there would be no fun in carrying away the boy. So far as the various articles are concerned, even according to the prosecution a good deal of articles were dropped on the way vide list Ex. P. 7. The articles mentioned in Ex. P. 10, which were recovered from one of the accused namely, Teekam, do not have any special marks on them. The silver Ornaments are such as are generally worn by ladies. They are of common pattern. We could have understood if the lady who used to put them on were produced and able to identify them. It is normally not easy for a male member of the family to identify such ornaments of common pattern generally worn by women in the villages on that side. Apart from this there is one further deficiency in the prosecution evidence. PW. 2 Mohanlal who is the star witness in the case has not stated anything about the bundle of the articles being carried away by the miscreants or it being dropped by them on the way, nor has he said that during his captivity these articles were seen by him with any of the miscreants. In the totality of circumstances we do not find it safe to hold that the accused had carried away the articles as mentioned in the list Ex P 7 or the list Ex. P. 10 for that matter. However, after careful examination of the statement of PW. 2 Mohanlal we have, no doubt that it were these five accused who had carried him away and had kept him in captivity. He remained with the accused till he was able to have his liberty as a result of the encounter between the miscreants and the police which led to the arrest of the accused.
(3.) LEARNED counsel for the appellants contended that Mohanlal was a boy of 14 and there is no corroboration of his statement regarding the kidnapping or abduction, as the case may be LEARNED counsel relies on Bharvad Bhikha vs. State of Gujarat (1 ). In that case one Falji Teja was coming to his house from Bhurkhi Railway Station. When he passed over a culvert he was assaulted by three accused. Accused No. 1 in that case came from behind and gave a blow with an axe to Falji on the left leg. Falji fell down. Thereafter accused Nos. 2 and 3 ran up to the spot. Accused No. 2 was armed with a spear and accused No. 3 with a Dharia. All the three than started giving blows to Falji. As a result of the injuries Falji died on the spot and the accused ran away. Falji deceased had a gun with him which fell down during the assault and accused No. 1 carried away that gun The case depended against the accused on the evidence of one Khengar who was a young boy of about 14. He got frightened and ran away. He informed his mother about the assault on Falji. At the time of the assault Pitambar Bhura a Koli Patel was proceeding from his house in Gundi to Bhurkhi Railway Station. It is in this context that their Lordships observed that the High Court was right in seeking corroboration of Khengar's evidence even though there were no infirmities in it. Their Lordships added that as Khengar was a young boy it would be prudent to seek corroboration. This thus raises the question as to what should be the correct approach in dealing with the evidence of a child witness. The House of Lords in Director of Public Prosecutions vs. Hester (2) had occasion to make certain observations in this regard. Lord Morris of Broth-Y-Gest in his speach observed - "the accumulated experience of courts of law, reflecting accepted general knowledge of the ways of the world, has shown that there are many circumstances and situations in which it is unwise to found settled conclusions on the testimony of one person alone. The reasons for this are diverse. There are some suggestions which can readily be made but which are only with more difficulty rebutted. There may in some cases be motives of self-interest; or of selfexculpation; or of vindictiveness. In some situations the straight line of truth is diverted by the influences of emotion or of hysteria or of alarm or of remorse. Sometimes it may be that owing to immaturity or perhaps to lively imaginative gifts there is no true appreciation of the gulf that separates truth from falsehood It must, therefore, be sound policy to have rules of law or of practice which are designed to avert the peril that findings of guilt may be insecurely based. So it has come about that certain statutory enactments impose the necessity in some instances of having more than one witness before there can be a conviction. So also has it come about that in other instances the courts have given guidance in terms which have become rules, included in such cases are those in which charges of sexual offences are made. It has long been recognised that juries should in such cases be told that there are dangers in convicting on the uncorroborated testimony of a complainant although they may convict if they are satisfied that the testimony is true, As this is no mere idle process it follows that there are no set words which must be adopted to express the warning Rather must the good sense of the matter be expounded with clarity and in the setting of a particular case Also included in the types of cases above referred to are those in which children are witnesses. The common sense and the common experience of men and women on a jury will guide them when they have to decide what measure of credence and dependence they should accord to evidence that they have heard. All the rules which have been evolved are in accord with the central principle of our criminal law that a person should only be convicted of a crime if those in whose hands decision rests are sure that guilt has been established. In England it has not been laid that such certainty ought never to be reached independence on the testimony of but one witnesses. It has, however, been recognised that the risk or danger of a wrong decision being reached is greater in certain circumstances than in others. It is where those circumstances exist that rules based on experience, wisdom and common sense have been introduced. " ;