SHARMA, J. - (1.) CHHINDER Kaur @ Chhipkali and Roop Narayan @ Roopa, the appellants herein, have impugned the judgment dated November 27, 2002 of the learned Additional Sessions Judge (Fast Track) Alwar whereby the appellants were convicted and sentenced as under:- Roop Narayan @ Roopa: U/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer rigorous imprisonment for one year. U/s. 120b IPC: To suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer rigorous imprisonment for six months. U/s. 309 IPC: To suffer simple imprisonment for one year. CHHINDER Kaur Chhipkali: U/s. 120b IPC: To suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer rigorous imprisonment for six months. U/s. 309 IPC: To suffer simple imprisonment for one year. Substantive sentences were ordered to run concurrently.
(2.) IT is the prosecution case that on April 20, 2002 Roop Narayan administered poison to child Deepu aged 8 months and thereafter Roop Narayan and Chhinder Kaur both consumed poison with the intention to commit suicide. They were taken to the General Hospital Alwar where Deepu was declared dead. A report about the incident was sent by Medical Officer to the SHO Police Station Shivaji Park Alwar. Case under section 302 IPC was registered and investigation commenced. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Alwar. Charges under sections 302, 307 alternatively 309 and 120b IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 17 witnesses. In the explanation under Sec. 313 Crpc, the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. Although as per autopsy report (Ex. P-1) cause of death of Deepu could not be ascertained but a look at the FSL report (Ex. P-13) goes to show that death was caused by poison. FSL report (Ex. P-13) reads as under:-      " On chemical examination, portions of viscera (1-5) and washing of exhibit No. 6 from three packets marked `x' `y' and `a' gave positive tests for the presence of Chloropyrophos Insecticide. " We have heard learned counsel for the parties. The prosecution case is founded on the sole testimony of Jyoti (Pw. 11) who on the date of incident was 11 years of age. Jyoti is the daughter of appellant Chhinder Kaur. In her statement under section 161 Crpc (Ex. D-3) Jyoti (Pw. 11) stated that her mother Chhinder Kaur and Roopa uncle administered medicine to each other thereafter they poured medicine in the mouth of Deepu. But in her deposition at the trial she took U turn and stated that Roopa administered poison to Deepu and when her mother went to the well, mother of Roopa pushed her mother down and then Roopa administered poison to her mother thereafter Roopa himself consumed poison. Jyoti completely disowned her police statement. She admitted in her cross examination that she was tutored by her father Swarn Singh. We find it unsafe to place reliance on the testimony of Jyoti. In Arbind Singh vs. State of Bihar (AIR 1994 SC 1068) Hon'ble Supreme Court indicated that a child witness is prone to tutoring and hence the court should look for corroboration particularly when the evidence betrays traces of tutoring. Privy Council in Mohamed Sunal vs. King (AIR 1946 PC 3) indicated thus:-      " In England where provision has been made for the reception of unsworned evidence, from a child it has always been provided that the evidence must be corroborated in some material particulars implicating the accused. But in Indian Acts there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence, court can act upon it. It is sound rule in practice not to act on the uncorroborated evidence of a child, whether sworned or unsworned, but this is a rule of prudence and not of law. "
(3.) IT is well settled that the testimony of a child witness should only be accepted after the greatest caution and circumspection. The rational for this is that it is common experience that a child witness is most susceptible to tutoring. Both on account of fear and inducement, he can be made to depose about things which he has not seen and once having been tutored, he goes on repeating in a parrot like manner what he has been tutored to state. In his book `outlines of Criminal Law' (Page 386) Dr. KENNY DOWNInG (Professor of `laws of England' Cambridge University) stated as under:-      " Children are most untrustworthy class of witnesses, for whom 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 of others and greatly influenced by fear of punishment, by hope of reward and desire of notoriety. " In Prakash vs. State of M. P. (1992 Cr. L. J. 3703 (SC)) their Lordships of the Supreme Court held that simply because the witness was a boy of 14 years it will not be proper to assume that he is likely to be tutored. ;