1. In this case the accused was charged with committing the murder of a boy named Vishwas on the 13th of August last, the murder having been caused by drowning the boy in a river. He was tried by the Sessions Judge of Ahmednagar, who, in agreement with the assessors, has found him guilty. He has been sentenced to death subject to confirmation by this Court.
2. We have heard full arguments in this case. The case for the prosecution depends mainly upon the evidence of the witnesses Daji and three boys, Babaji, Parya and Bhika, and upon certain circumstances.
3. It will be convenient at the outset to deal with the point about which we felt some difficulty and on which we invited arguments at the Bar. That relates to the admissibility of the evidence of these three boys. Two of them are seven years old and one of them is nine years old, and we find it stated in the judgment of the learned Sessions Judge that 'an oath was not tendered to the boys as they appeared to be too young to understand it but they promised to speak the truth.' The original record of the depositions of these boys in Marathi does not show that no oath was administered. But the notes of evidence in the Judge's own hand-writing show that the boys were not examined on oath but were examined on simple affirmation to speak the truth. In the diary of the case the boys are stated to have been examined like other witnesses on solemn affirmation. Though we had some difficulty in determining in this case as to what actually happened, I think the statement in the judgment makes it clear that the boys were examined not on oath, i.e., as I understand, no solemn affirmation in the form prescribed by the High Court was administered as required by the Indian Oaths Act.
4. This raises the question as to whether the omission to administer an oath or affirmation as required by the Indian Oaths Act to a witness of tender years renders his evidence inadmissible. The answer depends upon the meaning to be attached to the word 'omission' in Section 13 of the Indian Oaths Act. Several cases have been cited to us on this point, and it is clear that there is a difference of opinion on the question. So far as I can see, however, in this Presidency the view taken by the Full Bench of the Calcutta High Court in the case of Queen v. Sewa Bhogta 14 B.L.R. 294 : 23 W.R. Cr. 12 is accepted, as would appear from the judgment of Mr. Justice Jardine in Queen-Empress v. Shava 16 B. 359 : 8 Ind. Dec. (N.S.) 717 and from Emperor v. Kusha Yamaji Sutar 5 Bom. L.R. 551.
5. I am conscious of the considerations in favour of the other view which have been set forth in the dissenting judgment of Jackson, J., in the Full Bench case to which I have referred, in the judgment of Mahmood, J., in Queen-Empress v. Maru 10 A. 207 : A.W.N. (1888) 86 : 6 Ind. Dec. (N.S.) 139 and in the judgment of Collins, C.J., in Queen-Empress v. Viraperumal 16 M. 105 : 1 Weir 823 : 5 Ind. Dec. (N.S.) 781. But on the whole it seems to me that the view consistently adopted by this Court should be adhered to. I, therefore,' hold, following the view accepted in this Presidency, that the evidence of these boys, though taken without any solemn affirmation in the prescribed form, is admissible in virtue of the provisions of Section 13 of the Indian Oaths Act.
6. I desire, however, to add that it is necessary to follow the procedure pointed out by this Court in the cases above referred to in recording the evidence of witnesses of tender years. It is necessary that before proceeding to examine such witnesses the Court should satisfy itself that the witness was competent to testify, that is, was capable of understanding the questions put to him and of giving rational answers to those questions; and that thereafter the Court would proceed to administer an oath or affirmation as required by the Indian Oaths Act, If the witness is found to be incapable of understanding the obligations of such an oath or affirmation, he may be examined without an oath or affirmation, provided he is found to be a competent witness. These facts may be noted so that the record may show that before taking the statement of a witness, of that character, the trial Court had ascertained that the witness was a competent witness under Section 118 of the Indian Evidence Act and that the omission to administer an oath or affirmation was due to his want of understanding the obligations of an oath.
7. I wish to make it clear that, as pointed out in the case of Emperor v. Kusha Yamaji Sutar 15 Bom L.R. 551 the ignorance of a child on such a matter as the nature of a solemn affirmation is not necessarily equivalent to an inability to understand ordinary questions and give rational answers.
8. I am satisfied in this case that the evidence of the boys is admissible. The weight, however, to be attached to this evidence is quite a different matter and if is obvious that evidence of witnesses of such tender age must be received with due care and caution.
9. The case for the prosecution is that there was a dispute between Baburao, the father of the deceased boy, and the accused and his father with respect to certain land, that there was a decree in respect of the land in August 1916, that the possession of the land was to be handed over to the father of the deceased boy on the 13th of August last, and that possession was in fact handed over at about 11 o'clock that morning. The accused was not present at the time of handing over the possession to Baburao. He was seen going towards the place where the deceased boy and his other companions were playing when Baburao and other persons were going towards the field. Soon after this the accused took away the boy on the pretext of giving him big thorns to play with and at once threw nim into the river, which was very near the place where these boys were playing. He jumped into the river after throwing the boy in it. This is said to have been seen by the three boys and the witness Daji. The complainant Baburao, the father of the deceased boy, was at once informed of this fact when he returned from the field and he immediately gave information to the Patil. Both the information given to the Patil and the report made by the Patil to the Sub-Inspector refer to the accused Hari as the person who threw Vishwaa into the river. The Sub-Inspector arrived at night on that very day and he examined the boys and the witness Daji on the following day, i.e., on the 14th of August. This evidence has been subjected to critical examination by the learned Counsel for the accused, and after considering all that has been said in favour of the accused, I see no reason to disbelieve the evidence either of Daji or of the boys, I am satisfied that these boys and the deceased Vishwas were playing together on that day and that the deceased Vishwas was taken away by the accused and thrown into the river. There is really no good reason to, distrust the evidence of Daji. It appears from his evidence that Hari, that is the accused, was taken out of the water and made to stand there at the time. This evidence, coupled with the fact that the information was immediately given, leaves no doubt in my mind that the prosecution case is true.
10. There is a further circumstance about the foot-prints. So far as it goes, it is in favour of the prosecution case; but I do not attach much importance to it, because there is no means of testing whether the foot-prints tallied as deposed to by the Panch in this case.
11. There can be no doubt, in my opinion, about the correctness of the conviction.
12. The murder was undoubtedly brutal and the boy murdered Was an innocent boy who had given no offence whatever to the accused. Under these circumstances ordinarily I should think that the capital sentence would be appropriate. At the same time I notice a certain degree of reluctance on the part of Judges from the reported cases to pass a capital sentence, when the substantial part of the evidence which the prosecution rely upon is evidence recorded without an oath or affirmation as required by the Indian Oaths Act. I do not wish to be understood as laying down any general rule applicable to all such cases. But taking that into consideration along with the circumstances of this case, I am of opinion that the sentence of transportation for life would not be inappropriate.
13. I would, therefore, commute the sentence of death to one of transportation for life.
14. Marten, J.--Despite Mr. Velinkar's able arguments, the only difficulty I have felt in this case is as to the admissibility of the evidence of the three children, If I thought the conviction depended en their evidence, the proper course, in my opinion, would be to call for a report from the learned Sessions Judge as to the precise steps he took before allowing these children to give evidence: Cf. Queen-Empress v. Shara 16 B. 359 : 8 Ind. Dec. (N.S.) 717, and as to what precisely he means by 'affirmed not sworn because of age' and 'on affirmation to speak the truth, not on oath' with reference to their evidence. It may be too that in that event I should, speaking for myself, have thought the point to be one fit for a Full Banoh having regard-amongst other things, to the conflicting decisions in the various Indian Courts. But it is only fair to the learned Judge to add that the point in question was never taken before him, and that before us Counsel for the prisoner admitted in his reply that having regard to Emperor v. Kusha Yamaji Sutar 15 Bom L.R. 551 he could not rely on the point.
15. In my opinion, however, the conviction ought to stand even if one eliminates, as I do, the evidence of the three children. I believe the evidence of the alleged eye-witness Daji, and it is in keeping with the surrounding circumstances in evidence. The prisoner's statements I regard as a tissue of lies; and it is noteworthy that he called no evidence--not even his brother--in support of his statement that he was ploughing with his brother one and-half miles off at the time this boy was drowned. His statement must, therefore, be disregarded. This still leaves the prosecution with the obligation to succeed on the strength of its own evidence and not on the weakness or want of evidence for the defence. In my opinion the prosecution has discharged that obligation.
16. I would accordingly confirm the conviction. As regards the sentence I concur with my learned brother in thinking that having regard to the special circumstances of the case and the course which has been adopted in several of the authorities cited to us, it would be proper to reduce theft sentence of death to that of transportation for life.