N.I. Singh, J.
1. This appeal is directed against the order and judgment dated 14-9-1981 in Sessions Case No. 21 (NL)/79 of Sessions Judffe. Lakhimpur, by which the accused Nandeswar Kalita, was convicted for offence of murder punishable under Section 302, Penal Code, and sentenced to suffer R. I. for life.
2. The prosecution case may be stated in brief. Smt. Saruaity Das, aged about 40 years, after the death of her husband, took the accused, Nandeswar Kalita. aged about 20 years, as her second husband, and they lived together in the house of the former since some months prior to the occurrence. The occurrence took place on 19-10-1978 at about 7-00 a.m. Smt. Saruaity Das had four children by her first husband. Habang Das, the deceased, was her youngest, child, aged about 4 years,at the time of occurrence. On the day of occurrence in the morning, Bagai Das elder brother of the deceased, who was aged 6 years, at the time of the occurrence, was soothing his younger brother Habang Das, keeping him in his lap as the child was crying. Nandeswar, accused, all on a sudden gave a kick on the back of Bagai and snatched away the child from his lap and threw him on the courtyard. Again, the accused took up the child and threw him on the courtyard, as a result of which the child became unconscious. Bagai Das went near his brother who found the child dead. Bagai Das raised alarm, when his mother Smt. Saruaity Das, who was doing household works inside the house, rushed out on hearing the alarm and found the child Habang lying on the courtyard and the accused Nandeswar standing nearby. She found her son Bagai Das standing there and weeping. She took up the child and gave him nursing, but found the child almost dead. Smt. Joymati Das, next door neighbour, rushed to the place of occurrence on hearing Hulla. Both Bagai Das and Smt. Saruaity Das narrated to her about the incident. The accused had disappeared by then and he had not returned home since then. He was arrested by the police about five months after. On the next day of the occurrence, an information was lodged by one Bhagabanta Das to the O/C of Bihpuria Police Station. The 6/C registered a case and took up the investigation. In the course of investigation, he held inquest over the dead body and arranged for autopsy on the dead body by the Medical Officer. The Medical Officer, who held autopsy on the dead body on 21-10-1978, found injuries on the brain and memberance, and he opined that death was due to shock as a result of the head injury. The Investigating Officer examined some witnesses; and having found prima facie case, he submitted charge-sheet against the accused, to stand his trial under Section 302, Penal Code.
3. The accused was tried before the learned Sessions Judge, Lakhimpur, for offence of murder punishable under Section 302 Penal Code. The accused pleaded not guilty to the charge but produced, no defence witness. The prosecution examined as many as 7 witnesses to establish its case against the accused. The learned Sessions Judge found the accused guilty for the offence with which he was charged, and convicted and sentenced him as aforesaid.
4. The conviction rested solely (1) on the evidence of single eye-witness, Bagai Das (P. W. 4), and (2) circumstantial evidence.
5. There is no manner of doubt that the child succumbed to the injuries which he sustained. P. W. 1, Dr. M. Islam, who held autopsy on the dead body, found the following injuries: 'Cranium & Brain; Membrane near the left temporal region and vertex shows slight congestion. Subdural liquid blood and blood clot seen mostly near left temporal region.
Brain: Blood and blood clot seen over the sulcus of the vertex and left temporal region of the brain'.
In his opinion, the injuries on the brain and membrane were anti-mortem caused by blunt hit over the skull either in the temporal region or in the vertex just sort of causing fracture; and death was due to shock as a result of head injuries.
6. learned Counsel for the appellant submit that no reliance should be placed on the evidence of the child witness Bagai Das and the Sessions Judge has not made preliminary questions to the witness to satisfy himself that the child witness was intelligent enough to understand the questions and could give rational answers, though he made such an observation after conclusion of the evidence of the witness. It is also submitted that there is no other independent witnesses to corroborate the eyewitness.
7. In regard to the first question raised by the learned Counsel for the appellant, we are of the view that there is no rule of law that a Judge or Magistrate before recording statement of a child witness, should invariably put preliminary questions for the purpose of ascertaining the child's capacity to understand and give rational answers; and the mere fact that a Judge did not interrogate the child witness before the examination will not render his evidence inadmissible. The object of putting question is to enable the Judge to form his opinion whether the child has sufficient understanding to be qualified to be witness. But, in order to find this out, it is not obligatory that a preliminary investigation should be made. Another object of putting questions before examination is that time of the Court may not be wasted, if it is found afterwards that the child is not intelligent enough to give evidence. In the instant case, Bagai Das, who claimed to be the eyewitness of the occurrence, was a child about 7/8 years at the time of the evidence in the Sessions Court. After the examination-in-chief and cross-examination of this child witness, the learned Sessions Judge from his demeanour and other circumstances, observed that he was a natural witness. We agree with the view of the learned Sessions Judge in this respect. The witness testified that the accused snatched the child from his lap and thrashed him on the courtyard and he raised alarm, when his mother. Smt. Saruaity Das (P.W. 6), rushed from inside the house and he reported to his mother about it. He also narrated the occurrence to Smt. Jaymoli Das (P. W. 5) who arrived first at the spot. The witness could stand the ordeal of cross-examination and could give rational answers to the questions put to him. His narrative is very natural and consistent.
8. As to the second question, we are unable to accept the submission of the learned Counsel for the appellant. It is not the rule of law that a child's witness cannot be acted on in the absence of corroboration from independent evidence. Corroboration by independent evidence depends on the facts and circumstances of each case. In this case, there is no other eye-witnesses to corroborate P.W. 4, Bagai Das. But, there are tell-tale circumstances against the accused in the case. The evidence of the child witness finds support from the testimony of P. W. 5, Jaymati Das and P.W. 6 Smt. Saruaity Das. Smt. Jaymati Das is an independent and disinterested witness. It is also in evidence from testimony of P. W. 4 Bagai Das and P. W. 6 Smt. Saruaity Das, that the accused immediately after the occurrence left the place. P. W. 6 Smt. Saruaity Das further deposed that Nan-deswar, accused, was found standing near the child when she arrived. The accused who was standing at the spot did not stay long. Soon he disappeared from the place of occurrence. Since then he had not returned home. He was arrested after about five months of the occurrence. The evidence of P. W. 4, which is very natural and consistent throughout, stands corroborated by circumstantial evidence discussed above. His evidence also finds support from medical evidence of P. W. 1. We do not find any material to disbelieve his evidence. We accept his evidence as trustworthy and convincing.
9. The accused appears to have set up a plea of insanity for the first time, while P. W. 6, Saruaity Das, was under cross-examination. P. W. 6 stated in her cross-examination that the accused had developed some sort of abnormality, as he used to beat Habang now and then just some days before the occurrence. She further deposed that the accused used to loiter in the village aimlessly and at the time of the occurrence also the accused had developed abnormality. To a Court's question, the witness however stated that she did not know why the accused used to beat Habang now and then and admitted that from this beating, she stated that the accused has developed abnormality. The witness further admitted that she had not observed any other abnormality in his behaviour.
10. We are unable to accept the plea of insanity set up by the accused. The event makes it abundantly clear that the plea of insanity was belated, afterthought and false. Apart from the statement above elicited from P- W. 6 Smt. Saruaity Das in cross-examination, there is no other circumstance to show that the accused was in such a state of mind as to be entitled to the benefit of Section 84 Penal Code. The accused, in his statement in examination under Section 313, Cr. P.C. stated that Smt. Saruaity Das kept him as her second husband, but he was not agreeable to it and as such a false case has been filed against him. The learned Sessions Judge considered the entire evidence placed before him and came to the conclusion that the accused has failed to satisfy him that when he committed the murder of the child, he was not capable of knowing the nature of the act and that what he was doing: was either wrong or contrary to law. Having rejected the plea of insanity, the learned Sessions Judge convicted: him under Section 302, I.P.C.
11. We have carefully examined the testimony of P. W. 6, and we are satisfied that the accused has failed to discharge the onus of proof laid on him under Section 105, Evidence Act. There is no evidence of previous history of the mental condition of the accused. It is settled law that whether an accused was in such a state of mind as to entitle him to the benefit of Section 84 I.P.C. it can only be established from the circumstances which preceded, attended and followed the crime. In this case, the conduct of the accused does not show any abnormality prior to and at the time of the occurrence. It is in evidence from the testimony of P.W. 4 Bagai Das that the accused did not do any household work and he remained loitering in the village and accused used to quarrel with his mother. From this behaviour, it cannot be concluded that the accused had developed insanity prior to the occurrence. Nor is the evidence of P. W. 6, Smt. Saruaity Das, elicited in her cross-examination, sufficient to discharge the burden under Section 105, Evidence Act. Agreeing with the views of the learned Sessions Judge, we hold that the plea of insanity was false.
12. The next question for our determination is as to whether the accused committed the offence of murder punishable under Section 302 I.P.C. Counsel for the appellant urged that from the evidence and circumstances of the case, the case is covered by Section 304 Part II. The contention has much force and we accept it. It is in evidence from the testimony of the eye-witness, P.W. 4, that the child was crying and as such the accused got enraged and then threw him down on the courtyard. There is no enmity between the accused and P.W. 6. It appears that the accused, out of anger and in a heat of passion and without premeditation, snatched the child and threw him on the courtyard. But the accused had the knowledge that the act of throwing the child on the courtyard, in the manner as described by P. W. 4, was likely to cause death. We hold that the case, on the facts and circumstances, comes within the provision of Section 304, part II, Penal Code.
13. In the result, the conviction for the offence under Section 302 is altered to one under Section 304. Part II. The accused has been in jail since February,' 1979. Considering the age and circumstances under which the offence was committed, we award the sentence of five years of rigorous imprisonment. The period which he has already undergone from the date of arrest shall be set off. The accused shall suffer the remaining period of sentence. The appeal is partly allowed with the modification of sentence indicated above.