R.SACHAR, J. - (1.) THIS is an appeal against the judgment of the learned Sessions Judge, Jaipur City dated 27 -4 -71 by which he convicted the appellants under Section 302 read with Section 34 IPC and sentenced both of them to rigorous imprisonment for life and also a fine of Rs. 500/ - each, and in default of payment of fine to further undergo rigorous imprisonment for six months.
(2.) THE prosecution story in brief is that on 15 -1 -71 the deceased Kaus har Hussain was flying kites on the roof of Atish Market, Jaipur. His brother Mohammed Hussain PW 3 and Riyat Ali PW 7 were with him. It was further alleged that the accused came to the roof and they were also snatching the kites. They wanted Kaushar Hussain to go away but Kaushar refused and thereupon the appellants are said to have given beating and they also struck head of Kaushar with the result that the deceased fell down and became Unconscious. He was thereafter taken to the hospital where he died next day. The First Information Report was lodged on 16 -1 -1971 at 11.05 a.m. by the father of the deceased. He has appeared as PW. 2. His evidence is that the was informed by Mohammed Hussain that the appellants Kukku and Nazir had beaten Kaushar Hussain and he was inguinal unconscious state. He deposed that he took him to 'Safakhana' but was referred to hospital. But before that he went to Kotwali where a report was taken down by the Thanedar. Pw 3 is the younger brother of the deceased. He was 7 years of age at the time he deposed in the court. He has stated that the deceased had gone on the roof of Atish Market for the purpose of flying kites and he was, snatching the kites. Some time thereafter Kukku i.e. Virender Kumar had asked the deceased to go away but he refused. Then Nazir started beating Kaushar Hussain with slaps and fists. Thereafter Kukkoo also caught hold of the deceased be neck and struck his head against the wall resulting in injury of linear fractures of right temporal and parietal bones of the skull of the deceased. Thereafter again the deceased was beaten by both the appellants. To similar effect is the evidence of Pw 7 Riyat Ali. Both the witnesses were not given oath because the learned Sessions Judge found that they did not know the implication of oath Mr. Chatterjee, learned Counsel for the appellants contended that the evidence of these witnesses being that of child witnesses could not be accepted unless it was commemorated by some other independent witnesses. He referred to us Bharvad Bhikha Valu and Ors. v. The State of Gujarat AIR 1971 SC 1964. This authority only lays down that it is desirable to seek corroboration of the evidence of a witness in view of his tender age. There is no rule of law that the evidence of a child witness cannot be accepted without corroboration though it may be prudent to obtain corroboration of the said evidence. Each case necessarily has to be decided on its own facts. The presence of these two witnesses is natural as according to them the had also gone for the purpose of flying kites and it cannot be said that this is not a proper explanation. The cross -examination of these two witnesses has not been able to shake them away from the main thrust of the story that the incident took place at the place and at the time and in the manner deposed to by these prosecution witnesses. Mr. Chatterjee has referred us to some variations in the statements made by these two witnesses before the Police. Mohd. Hussain Pw 3 has stated in the court that Kukkoo had caught hold of the deceased by his neck aid had struck his head against the wall but this part was not mentioned in the police statement. The whole trend of the cross -examination has not been able to shake the evidence of these two witnesses that the beating was given to the deceased by the two appellants We have no reason not to accept the evidence of these witnesses who are natural witnesses and we must therefore hold that beating was given by the accused to the deceased. Their evidence also finds support from the medical evidence which bears only the version given by the prosecution witnesses.
(3.) P .W. 4 is the doctor, who has examined the deceased on 15 -1 -71. He found no external injury on the body of the deceased but he advised for X -ray of skull bones and the injury report is Ex. P/2, which was prepared by the doctor. It shows that there is no external mark of the injury on the body of deceased. The deceased died on 16 -1 -1971 at 10.10 a.m. and post -mortem was performed on him. On opening the body this witness found that the help tissue contused in the right temporal parietal region. There were linear fractures of right temper all and parietal bonus of skull. There was sub -dural haemorrhage present in the right parietal region. In the opinion of the doctor the cause of death was due to the head injury, which resulted in sub dural haemorrhage.;