Kanta Bhatnagar, J.
1. Appellant Nawla had been tried by the learned Additional Sessions Judge, Pali for the offence under Section 302 Indian Penal Code and by the judgment dated 12-7-76 was convicted for that offence and sentenced to imprisonment for life.
2. Briefly stated the facts of the case leading to the trial of the appellant are that on 26-6-73 at about 4.15 P.M. Bhim Singh (PW 9) lodged on oral information at Police Station, Sojat-City to the effect that he was informed by Dhagal Singh (PW 8) that Nawla had murdered Lalsingh, younger brother of the informant in the jungle of village Molawas. Umedsingh (PW 12) Station House Officer, Sojat-City got the information reduced into writing by the Assistant Sub-Inspector which is Ex. P. 1 and a case Under Section 302 I.P.C. was registered against the appellant. The Station House Officer left for the site immediately and reached the grazing land (gocher-land) at village Molawas. He in the presence of Ramsingh, Nabu Khan and Sursingh inspected the site at the instance of Kirpa (PW 1). The dead body was found lying beneath a 'Khejri' tree. Necessary investigation at the site was completed on the next day. On 27-6-73 Dr. Narpat Raj Kaveria (PW 6) conducted they autopsy over the dead body of Lal Singh at 11.30 a.m. and prepared the postmortem examination report Ex. p. 10. The blood stained earth, trie pieces of the bark of 'Khejri' tree and the blood stained clothes recovered from the dead body of Lalsingh were sent for chemical examination. The report of the Chemical Examinor is Ex. P. 3 and that of the Serologist is Ex. P. 14. The articles were found to be stained with human blood. Appellant Nawla was not traceable and, therefore, the Station House Officer, Sojat City filed the charge-sheet against him under Section 512 Cr. PC (old) Thereafter on 23 4-74, after the arrest of the appellant completed charge-sheet was filed in the Court of Munsif Magistrate, Sojat.
3. The learned Magistrate finding a prima facie case exclusively triable by the Court of Sessions, committed the appellant to the Court of Sessions Judge, Pali to stand his trial. On being charge-sheeted for the offence under Section 302 Indian Penal Code, the appellant pleaded not guilty and claimed to be tried. To substantiate its case, prosecution examined sixteen witnesses in all and placed reliance on twenty six documents. In the statement Under Section 313 Cr. PC the appellant totaly denied the allegations levelled against him and stated that he had gone to his father-in-law's house where he was informed about a false case being lodged against him and there after he was at Ratlam where he was apprehended by the police. According to him he was not on good terms with Dhaglia Mali (PW 5) to whom he had advanced a loan of Rs. 200/-. Mana Mali (PW 3), another prosecution witness also bore enmity with him. According to him the deceased Lal Singh had illicit relations with his niece Samdari daughter of Bhola, and, therefore, the latter was on inimical terms with the deceased He examined four witnesses to substantiate his contention. The learned Additional Sessions Judge placed reliance on the prosecution evidence and held the appellant guilty for the murder of Lalsingh and passed the judgment of conviction as stated above.
4. Being aggrieved by his conviction and sentence the appellant has preferred this appeal through the Superintendent, Central Jail, Jodhpur in this Court. Mr. Doongar Singh, Advocate has appeared on his behalf.
5. We heard Mr. Doongar Singh, learned Counsel for the appellant and Mr: H.N. Calla, learned Public Prosecutor for the State.
6. It has been strenuously contended by Mr. Doongar Singh that the prosecution case rests on the solitary testimony of Kirpa (PW 1) a child witness and, therefore, without there being any corroborative evidence the finding of the guilt of the appellant is not sustainable.
7. Learned Counsel for the appellant drew our attention to the statements of Nena (PW 3). Dhaglia Mali (PW 5), Dhagal Singh Rajput (PW 8) and Bhim Singh (PW 9) and stressed that all these witnesses have contradicted each other and from their statements taken as a whole, the testimony of the solitary witness stands shattered.
8. Prosecution has come with the direct evidence of Kirpa (PW 1) and Dhaglia (PW 5) to substantiate the case that it was the appellant Nawla who had caused multiple injuries to Lal Singh lying beneath 'Khejri' tree with a 'Kunt'. The corroboration of the testimony of Kirpa has also been sought by the statements of Nena (PW 3) Dhagal Singh Rajput (PW 8) and Bhim Singh (PW 9).
9. The version given by Kirpa (PW 1) is that Lal Singh being employed as a labourer by his father had brought food for him and his brother Mohan who were grazing she goats in the gochar land. Accor-din to him Dhaglia Mali (PW 5) and Nawla were also grazing their flocks of goats (AVER) there. Nawla asked the witness to take his goats away and at the instance of Lalsingh the witness did so. After some time when the witness was grazing his cattle near 'peepliya bera' at a distance of about 300 ft. he saw Nawla reaching near Lalsingh, who was sleeping beneath the 'Khejri' tree, and inflicting 'Kunt' blows to him. The witness thereafter went to Dhaglia (PW 5) and told him what had happened. Dhaglia (PW 5) told him that he had also seen the occurrence and asked the witness to go and inform Bhim Singh; brother of Lal Singh. On the way the witness is said to have met Dhagal Singh (PW 8) and Nena Mali (PW 3) and all of them then went to 'Ramsagar Bera' and narrated the incident to Bhim Singh.
10. Another important witness in the case besides Kirpa is Dhaglia Mali (PW 5). In order to find out whether he corroborates Kirpa PW 1) or not, a careful scrutiny of his testimony is required. According to Dhaglia (PW 5), he, Kirpa (PW 1), Mohania and Lal Singh were grazing goats and while they were sitting beneath the 'Khejri', tree Nawla went to them and demanded one 'bidi' and they refused. Thereafter Nawla went away and Lal Singh asked him and Kirpa (PW 1) to bring the goats. He no where speaks about Nawla threatening Kirpa (TW 1) that he would beat him with the 'Kama' in case he would not bring his goats. Yet another discrepancy between the statements of the two witnesses is that whereas Kirpa (PW 1) has stated about Nawla being already there grazing his goats and Lal Singh coming thereafter with the food for the boys, Dhaglia's (PW 5) version is that Lal Singh was already there grazing his goats and Nawla had come afterwards, when the witness along with others was sitting beneath the 'Khajri' tree. Kirpa (PW 1) does not state about Nawla demanding 'bidi' and Dhaglia (PW 5) refusing to give any.
11. The pertinent point to be determined with regard to the statement of Dhaglia (PW 5) is whether he had come to know about it though Kirpa (PW 1). In his statement recorded during the course of trial, the witness has claimed to bean eye-witness. The attention of the witness was drawn to Ex. D. 9, his previous statement recorded on 12-9-74 in this very trial wherein at portion A to B he has deposed, that prior to Kirpa informing him he had not known about Lal Singh being killed by Nawla. The only explanation given by the witness for such an important discrepancy is that he does not recollect because he is illiterate. In view of the statement of Kirpa (PW 1) that Dhaglia (PW 5) had told him that he had also seen Nawla assaulting Lal Singh with a 'Kunt' a question to that effect was put to the witness Dhaglia (PW 5) in his cross-examination and he stated that he had told so to Kirpa. His attention was drawn to the omission of such an important fact in his police statement Ex. D.5, statement under Section 164 Ex. D. 6 and his previous statement in the trial court Ex. D. 9 and the witness could not give any explanation except that he does not know what the 'munshiji' had written in his statement.
12. In this view of the matter we find force in the argument advanced by the learned Counsel for the appellant that the statement of Dhaglia that he saw the occurrence and told Kirpa that he had himself seen the appellant giving 'Kunt' blows to Lal Singh, is an after thought.
13. There are certain other inconsistencies in the statement of the witness which he gave at the trial and his previous depositions, In the court he has stated that the appellant put down his turban prior to committing the crime while in portion E to F of his statement Ex. D.6, he has stated about the turban having fallen down. Kirpa (PW 1) has stated that Nawla and Dhaglia Mali (PW 5) had smoked together prior to the incident. This fact being put to Dhaglia (PW 5), he answered in the negative. When his attention was drawn to portion A to B of his statement Ex. D. 6 where he had deposed that Nawla Gujar came on the gochar land and smoked one 'bidi' taking it from the witness the witness stated that because of lapse of time he does not recollect and that he had demanded the 'bidi' but the witness did not give. When his attention was drawn to portion G to H of his police statement Ex. D. 5 where he had stated that he gave 'bidi' to Nawla and that he initially refused to give but subsequently gave it to him, the witness disowned that version. Dhaglia (PW 5) has specifically deposed at the trial that from the place where he and Kirpa were standing the place of occurrence was clearly visible and there was no obstruction on account of dazzling sun. His attention was drawn to portion C to D of his statement Ex. D. 9, wherein he had stated about there being scorching heat causing dazzle, the witness simply disowned the same. Yet another inconsistency in his previous statement and the one recorded at the trial is regarding Nawla coming in the precincts (seda) of 'Peepliyon-ka-jav', the witness denied having seen the appellant there. On being questioned whether he had at all gone there, the witness stated that he had gone there in the morning. While in his police statement Ex. D. 5, he had deposed that there were may persons at the 'seda' at the time and Nawla went there and took water from the reservior. According to the learned Counsel for the appellant this shows the presence of a good number of persons there at the time, but the prosecution for the reasons best known to it, has not cared to examine them, and therefore, this portion about the presence of a number of persons there at the 'seda' of Peepliyon well' has been attempted to be changed by the witness. When the attention of this witness was drawn to this portion of his statement, he admitted to have stated so with further addition that at the time he had left the place with his goats.
14. The conduct of Dhaglia (PW 5) also raises grave doubt about his presence at the place of the incident. It is noteworthy that age of Kirpa (PW 1) at the time of his statement at the trial on 23-10-1975 was stated to be fourteen years. The incident relates to March 1973 and naturally the boy might be about eleven years of age at the time. Dhaglia (PW 5) has stated his age on 24-10-1975 to be fourteen years but the estimate of the Court for his age is twenty two years. Dhaglia (PW 5) was thus older than Kirpa (PW 1). When such heinous incident had taken place Dhaglia at the pretext of pain in his stomach not going to infrom any body about the incident and asking the child Kirpa to go and inform Bhim Singh appears to be strange. While dealing with the unnatural conduct of this witness it is to be noticed that according to him, Bhim Singh had reached the site after some time still the witness did not tell any thing about the occurrence. It is also to be considered that Bhim Singh or Dhagal Singh did not ask Dhaglia any thing about it which was unnatural if Dhaglia had been there at the time when Bhim Singh reached to find out what had happened to his brother. Dhaglia has stated that police had met him on the way when he was taking his goats to his house but even at that time the witness did not stay there nor any body asked him to do so. The statement of the witness was also not recorded on that very day. If Kirpa had actually seen Dhaglia at the time of the incident and had actually been told by the latter that he had witnessed the incident then it was quite natural for him to have told about it to the persons when he met. It is relevant to note here that although while preparing the site plan this fact has come to the notice of the Station House Officer yet he did not care to send for Dhaglia for recording his statement. In this connection we may also refer to the statement of Kirpa (PW 1) who had deposed that at the time of the site inspection the Sub-Inspector had made him and Dhaglia Mali (PW 5) to stand at the places from where they had seen the occurrence. This cannot be reconciled with the statement of Dhaglia that he had met the police on the way but he went away to his house. If Kirpa's statement is correct and Dhaglia was, in fact, there then his statement should have been recorded that very day. The distance shown in the site plan Ex. P. 3 between the place of the incident and 'Navediya Bera-ka-Jav' where Dhaglia Mali is said to be is 425 ft. We are impressed by the argument advanced by the learned Counsel for the appellant that even assuming that Dhaglia was present on the gochar land at that time, still he could not be in a position to see what had happened. For all these reasons, the statement of Dhaglia (PW 5) does not lend any support to the prosecution case and it cannot be said to be a corroborative piece of evidence,
15. The statement of Dhaglia (PW 5) having been disbelieved, we are left with the only eye-witness of the occurrence, Kirpa (PW 1). At the very outset we may observe that Kirpa at the relevant time was only about eleven years of age. His statement at the trial was recorded on 23-10-1975 i.e. about two and half years after the alleged incident.
16. The learned Public Prosecutor has referred to the observations made by their Lordships of the Supreme Court in Yahal Singh v. State of Punjab : 1979CriLJ1031 that the boy of 13 years from rural area with mature understanding cannot be treated as a child witness. This principle does not apply to a case where at the relevant time the witness was only about 11 years of age and his statement given at that time differs in certain material particulars e.g. regarding the place where he was at the time of the incident from that which he stated in his later statement. In the case relied on by the learned Public Prosecutor the observations of the High Court were endorsed by their Lordships of the Supreme Court that patently a young boy had emerged from a long and protracted cross-examination as a truthful witness and nothing of any significance could be elicited from him which would in any way detract from the massive weight of testimony. Apart from this in that case there was supporting evidence in the form of the dying declaration of the injured which was relied on by the Court. In the case in hand Kirpa (PW 1) who was about 11 years of age at the time of incident, the sole witness in the case did not stick to his previous statements and could not give proper explanation for the inconsistent versions which he gave at different times. In his examination-in-chief the witness has substantiated the prosecution case that he had seen the appellant inflicting a number of 'Kunt' blows in quick succession to the deceased Lalsingh. In his cross-examination on the attention of the witness being drawn to his previous statement Ex. D.7 recorded by the trial court itself on 10-9-74, a number of inconsistencies have been brought on record The witness in that previous stat ement has stated about raising a cry when the accused appellant was inflicting blows to Lal Singh but he has disowned this statement and denied to have raised any cry at the time of the incident. A very important fact attracting attention in the statement of the witness at the trial in contradiction to his previous statement is about the place where he was at the time of the incident and from where he professed to have seen the incident. At the trial he has stated that at that time he was at 'Peepliya Bera' itself, grazing the goats while in Ex. D. 7 in portion A to B he had stated that at that time he was grazing his goats on the gochar land which is ahead of another jav of 'Peepliya Bera'.
17. Learned Counsel for the appellant emphatically argued that this change of the place has been deliberately introduced in the subsequent statement recorded after about two and half years in order to establish that Kirpa (PW 1) was in a position to see what was happening at the place Lal Singh was found dead. The distance between the place of the incident and the place where at the relevant time witness Kirpa is said to be, is shown to be 336 ft. Even from such a distance in the dazzle of the bright sun as it was at the time, and further there being three feet high shrubs scattered throughout, it cannot be easily believed that the boy (Kirpa) was in a position to see what he has stated to have seen, then what to speak of the place still far away from 'Peepliya Bera' where the witness was according to his previous statement in the court at the relevant time. It is worth consideration that it is no where the case of the prosecution that Dhaglia (PW 5) was at all present at the time of the site inspection, but the version given by Kirpa (PW 1) is that at the time of the site inspection, he and Dhaglia were made to stand at the places where according to him each of them was at the time of the incident. This version of the witness is not supported even by the Investigating Officer, Umed Singh (PW 12) who has stated about Kirpa alone being asked to stand at the places and has further admitted that no note to that effect was appended by him in the site inspection memo, Thus on careful scrutiny of the statement of Kirpa (PW 1) in the court, in contradiction with his previous statement, does not impress us as a truthful and credible witness. The learned trial judge has, of course, ensured that the boy was able to understand the questions put to him and was fit to give statement on oath but that opinion is formed when the boy had reached the age of fourteen years. As to what type of understanding he possessed two and half years prior to his statement at the time i.e. just after the occurrence when he was only about eleven years of age is not known. In such circumstances, we are not inclined to place reliance on the testimony of the solitary child witness (Kirpa PW 1) who in view of his inconsistent depositions at different times cannot be said to be of sterling worth unless there is some corroboration.
18. The learned Public Prosecutor has submitted that the presence of the boy Kirpa (PW 1) near about the place of occurrence and his seeing the actual assault by the appellant to the deceased Lal Singh stands corroborated by the statement of the Nena Mali (PW 3), Dhagal Singh Rajput (PW 8) and Bhim Singh (PW 9). But of these, first two are the persons whom he met on the way and the third is brother of the deceased who was informad at 'Ramsagar Bera' by these two persons as well as Kirpa. According to Kirpa (PW 1), Dhagal Singh (PW 8) was the first man to whom he met while going to inform Bhim Singh (PW 9). According to Dhagal Singh (PW 8) he on being informed by Kirpa went to 'Ramsagar Bera' where net met Bhim Singh and narrated the facts. Nena Ram (PW 3) also reached there at that tims. The witness has also stated that two minutes prior to Kirpa meeting him, he had seen accused Nawla coming from the direction of the dead body of Lal Singh and going towards Sojat Road, having a turban in his arm. So far as the second fact is concerned it dose not inspire confidence. Firstly, because in cross-examination, the witness has stated that he had seen Nawla from a distance of about 200 'paundas' from back. It is not possible that a person in that bright sun would be able to identify a person from such a distance. Secondly despite being informed by Kirpa (PW 1), the witness neither tried to call Nawla nor chased him to find out where was he going. So far as his going to Ramsagar Bera' and telling Bhim Singh are concerned he has stated that he had told Bhim Singh about what had known through Kirpa and thereafter Nena also reached there and following him Kirpa also came there. In examination-in-chief Bhim Singh (PW 9) has stated that it was Dhagal Singh (PW 8) who has first of all informed him about the incident but in his cross-examination, on being questioned as to whether it was Nena or Kirpa who had first reached, the witness answers that Nena first reached and while he was calling the witness Kirpa also reached there. The witness also admitted the suggestion that Dhagalsingh (PW 8) met him while he was going out of the 'Bera'. His attention was drawn to his previous statement Ex, D. 10 recorded in the Court where in portion A to B he has deposed that when Kirpa came, he was alone bat the witness disowned it. His attention was also drawn to the portion C to D of that statement where he has stated that Nena came after Kirpa and thereafter he alone left for the place of occurrence. This falsifies the versions that Dhagal Singh (PW 8) first of all narrated the facts to him then accompanied him to the place of occurrence. The witness also disowned the portion E to F of his statement Ex. D. 10 where he has deposed that after Nena and Kirpa had gone away to village, Dhagal Singh met him outside the 'Bera'. He also disowned portion G to H of Ex. D. 10 wherein he has stated that Dhagal Singh did not tell him that Lal Singh had been murdered.
19. Turning to the statement of Dhagal Singh (PW 8) his conduct is most unnatural. He has admitted that Lal Singh was his cousin in relation, According to him, he had not seen the dead body of Lal Singh prior to the arrival of the police. Kirpa's version is that on being informed about the Lal Singh, Dhagal Singh went with him towards the place of occurrence and from the distance of 10 15 'poundas' saw Lal Singh there and thereafter told the witness that he may go to the village and he (witness) was going to 'Samsagar Bera' where he would inform Bhim Singh. In the natural course of events a grown up person like Dhagal Singh, especially when he happens to be the relative of the deceased, was expected to go near the dead body to find out whether victim was still alive or not. Dhagal Singh, having denied to have gone near the dead body, his attention was drawn to his police statement Ex. D. 2 wherein at portion 'C to D he had deposed that he along with Kirpa went to the eastern side and saw Lal Singh lying dead near 'Khejri' tree. The witness disowned that statement as well the details about the dead body lying there. This is also quite unnatural that while accompanying Bhim Singh, Dhagal Singh remained on the road without having any curiosity to see the dead body. The explanation given by the witness that he remained on the road awaiting for some person going with a pump so that he might fill in the air in the tube of his cycle is not believable because Bhim Singh (PW 9) no where stated about Dhagal Singh not accompanying him up to the place where he is said to have seen the dead body from a distance of 10 to 12 'paundas'. The statement of Dhagal Singh (PW 8) and Bhim Singh (PW 9) taken together do not suggest that Dhagal Singh (PW 8) had actually known the event and it was he who first of all informed Bhim Singh about the occurrence.
20. So far as Nena (PW 3) is concerned we need not pause much because though he had stated about his going to 'Ramsagar Bera ', he did not state about his having any talk with Bhim Singh about the incident. He has stated about Kirpa reaching ahead of him at 'Ramsagar Bera'. Ths sequence of the three persons viz. Kirpa, Dhagal Singh and Nena reaching 'Ramsagar Bera' and as to who actually narrated the incident to Bhim Singh first of all may not as such appear to be important because minor contradictions and discrepancies in the statements of the witnesses are natural, but when the prosecution case hinges on the solitary testimony of a child witnesses Kirpa (PW 1) these discrepancies and contradictions assume importance.
21. On carefully scanning the testimony of the aforesaid witnesses, we are inclined to hold that the statements of Dhagal Singh (PW 8) and Nena (PW 3) cannot also be said to be a corroborative piece of evidence.
22. We should not be understood to suggest that in no case, conviction can be based on the solitary testimony of a witness or a child witness.
23. It is settled principle of law that since it is quality and not the quantity which matters there cannot be any hard and fast rule regarding the number of witnesses required for the proof of charge. If the evidence of a single eye-witness is of such a sterling value that it impresses to be the testimony of a competent honest man, then in the given circumstances of the case, courts may do away with the necessity of corroborative evidence But in a case like the one in hand, when the sole witness happens to be a child of 11 years of age at the time of the occurrence and his statement at the trial is after about two and half years, his competency is to be judged from his power of understanding at the relevant time and not subsequent to it. In such a case it would be a legitimate demand to seek corroboration from other evidence. In Badri v. State Rajasthan 1976 SCC (Cr) the question of believing a solitary witness came up for consideration before their Lordships of the Supreme Court. The sale witness was not considered to be absolutely reliable and in such circumstances it was held that his repeating the name of the accused to several persons after the occurrence would not add to the quality of evidence.
24. The learned Public Prosecutor next submitted that even in case statements of Dhagal Singh (PW 8) and Nena (PW 3) may not impress the court on account of their discrepant statements and conduct still there is another evidence against the appellant which supports the prosecution case and in its light Kirpa's testimony should be considered to be sufficient to base a conviction. He referred to the statement of Dhagalia (PW 5) and stated that there its evidence of motive against the appellant to commit the murder of Lal Singh. The witness Dhaglia (PW 5) has stated that Nawla had illicit re lations with a lady of Naik community and Lal Singh had seen him and had stated so in a meeting which annoyed Nwla and he become angry with Lal Singh. In cross-examination the witness has admitted the suggestion that lady was the wife of Bhola Naik, the brother of the deceased and it was in his presence that Lal Singh stated against Nawla in the meeting. Dhagalia does not state as to which period the talk by Lal Singh related. This type of the vague evidence regarding motive does not in any way prove the prosecution case for the two reasons. Firstly, the witness had not stated about the period to which this fact related nor any other witness has been examined to support him and secondly, because Dhangalia has not been found to be a truthful witness by us for the reasons discussed earlier.
25. From the above discussion, we are inclined to hold that the prosecution case based on the sole testimony of Kirpa (PW 1), child witness, without there being corroboration of any sort cannot be said to be established beyond reasonable doubt, so as to justify the conviction of the appellant.
26. Consequently, we accept the appeal and set aside the conviction and sentence awarded to the appellant and acquit him of the charge levelled against him. He is in jail and shall be set forth to liberty at once, if not required, in any other case.