S.S. Byas, J.
1. By his Judgment dated April 23, 1979, the learned Additional Sessions Judge, Sirohi has convicted the appellant Savia and Chuna under Section 302, IPC and sentenced each of them to imprisonment for life with a fine of Rs. 200/-, in default of the payment of fine to further undergo four months' rigorous imprisonment. The appellants have come up in appeal to challenge the conviction and sentence.
2. Put briefly, the prosecution case, which is short and simple, is as follows: PW 5 Mst. Marga and PW 6 Patiya are the parents while PW 1 Babu is the nephew of the deceased Tejiya. The deceased was living with the parents in the town of Pindwara while Babu (PW 1) and his parents were living separately from them. Teja and his father had a field shown by mark 'D' in site plan Ex. P. 30. Contiguous to it, in the North, is situate the field of the appellant Savia. There was a Jhumpa in the field of the deceased. The appellants are also residents of town Pindwara. In the noon of October 20, 1979, Tejiya was working in his aforsaid field. His nephew PW 1 Babu was working in his field alleged to situate nearby. The Arhar crop was standing in his field. The appellants came where Tejiya was working Accused Savia had a gun with him while Chuna had two axes in his hand. Accused Savia fired two shots with his gun at Tejiya. Tejiya fell down. Thereafter both the accused-appellants struck multiple blows to him with the axes. There was profuse bleeding from his wounds and the clothes he was wearing got drenched with it. The appellants thereafter made good their escape. Babu (PW 1) got terribly frightened and he hid himself in the Arhar crop. When the accused went away, Babu came out and went towards Pindwara. In the way, he met his grand mother Mst. Marga (PW 5). He told her that Tejiya was done to death by the appellant. He proceeded further and met his grandfather Patiya (PW 6). Babu (PW 1) informed him also of the incident. Mst. Marga and Patiya came to the place of incident and found Tejiya lying in a pool of blood. He was groaning and moaning with pain but he was unable to speak. He passed away within some minutes. Patiya went to Police Station, Pindwara and verbally lodged report Ex. P. 2 of the occurrence at about 2.30 P.M. The police registered a case and the usual investigation ensued. The Station House Officer Bhagwan Dass (PW 15) immediately reached the scene of occurrence where the deadbody of Tejiya was lying. He inspected the site, prepared the site plan and the inquest report of the victim's dead body. He also seized blood stained soil from there. The medico-legal autopsy of the victim's dead body was conducted at about 9.50 A.M. on October 21, 1978 by PW 7 Dr. V.R. Bhandari, who was then working as Medical Officer Incharge, Government Dispensary, Pindwara. The doctor noticed the following ante-mortem injuries on the victim's dead body:
1. Through and through incised wound of 10.7 cm. on the right hand starting from lateral side of wrist to base of ring finger cutting scaphold and 2nd and 3rd metacarpal bones from middle of 2nd and lower part of 3rd meta carpal.
2. Circular wound of 1 cm. x 2 cm. on lateral sid-5 of upper part of right chest just below axilla. Skin of edge of wound was black.
3. Incised wound of 1 cm. x 1 cm. x 1 cm. on middle of dorsum of left thumb of hand.
4. Incised wound of 1 cm. x 1 cm. x 1 cm. on dorsum of base of middle finger of left hand
5. Multiple abrasions of 3 cm. x 2 cm. to 1.5 cm. x 7 cm on upper and outer part of the left upper arm
6. Incised wound of 1.5 cm. x 5 cm. x 2 cm. on middle of medial side of right thigh
7. Abrasions of 2.5 x 2.2 cm. on front of left knee
8. Incised wound of 5.2 cm. x 1.2 cm. x 2 cm. on middle of lateral side of right chest
9. Circular wound of 7 cm. diameter and 4 deep on the upper part of right scapular region.
10. There was swelling of 7 cm. x 6 cm. just medial to the wound No. 9, which was incised and splinter was removed and preserved.
11. A horizontal incised wound of 5.2 cm. x 2 c m. x 1 cm. just above the medial end of right clavicle.
12. Incised wound of 2.6 cm. x 2 cm. 1 cm. on middle of anterior part of neck
13. Incised wound of 13.5 cm. x 3.7 cm. at the mid-line and either side more on right side of lower part of back cutting skin, muscle, 12 thorasic vertebrae, spinal cord inferior venaceva and right kidney
14. Oblique incised wound of 11.9 cm. x 5.2 cm. on left side of abdomen lateral to umbilicus cutting all layers of abdominal wall. Small and large intestines were lying out side abdominal wall.
1. 8th rib fractured
2. Tear of right pleurae of 1.7 x 6 cm. at the level of 8th rib
3. Tear of right lung
4. Incised wound 2.5 cm. x 0.5 cm. on small intestines
5. Lacerated wound 3.2 cm. x 2.5 cm. x 0.8 cm. on superior surface of right lobe
6. Incised wound 4.7 x 1.6 x 1.3 cm. on inferior surface of spleen
7. Incised wound 3.7 cm, x 0.9 cm. x 5 cm. on posterior surface of middle of kidney
3. Injuries No. 2 and 9 were caused by gun shot. Injuries No. 5 and 7 were caused by some blunt weapon while the rest were caused by sharp edged weapon. A splinter (pellet) was found embedded in the victim's dead body. The doctor was of the opinion that the cause of death of the victim was haemorrhage and shock due to injuries to vital organs i.e. lever, spleen, large vessels and spinal cord. He was further of the opinion that injuries No. 8, 13 and 14 were individually sufficient in the ordinary course of nature to cause death. The post mortem prepared by him is Ex. P. 3. The appellants were arrested and in consequence of the disclosure statements made by them, a gun, a sword and axes were recovered. Some blood-stained clothes were also recovered at their instance, which they were wearing. The seized articles were sent for chemical examination. Blood was found on most of them. On the completion of investigation, the police submitted a challan against the appellants in the Court of Judicial Magistrate, Abu Road, who in his turn committed the case for trial. The learned Additional Sessions Judge framed a charge under Sections 302, IPC against each of the appellants, to which they pleaded not guilty and faced the trial. Denouncing the whole prosecution story as false and fabricated piece of concoction, they claimed absolute innocence. In support of its case, the prosecution examined 15 witnesses and filed some documents. In defence, the accused examined one witness, viz. DW 1 Dr. B.K. Khatri, the then Chief Medical and Health Officer, Sirohi. On the conclusion of trial, the learned Sessions Judge found the charge duly brought home to the accused. They were consequently convicted and sentenced, as mentioned as the very out set. Aggrieved against their conviction and sentence, the accused have taken this appeal.
4. Before proceeding further, we may state that the opinion of Dr. Bhandari (PW 7) pertaining to the cause of death of the victim was not challenged before us. We have carefully gone through the testimony of Dr. Bhandari and found no reasons to distrust his opinion. We, therefore, need not detain ourselves on this point It stands proved that the death of Tejiya was not natural. It was homicidal.
5. It may be pointed out at the very commencement that the entire prosecution case against the appellants rests squarely on the testimony of PW 1 Babu. In case his testimony is taken as dependable and trustworthy, there is no escape for the appellants. But if his testimony is not found dependable and reliable, there is no other evidence to connect the appellants with the murder of Tejiya. The learned Sessions Judge placed implicit faith on the testimony of this witness and found it sufficient to base the conviction of the appellants.
6. We have heard Shri, Bhandari, learned Counsel appearing for the appellants and Mr. Bhati the learned Public Prosecutor. We have also gone through the case file carefully.
7. Mr. Bhandari made a scathing criticism of the testimony of Babu (PW 1) and urged that his claim to have witnessed the occurrence is absolutely baseless and unfounded. It was argued that 'this witness was a child of eleven years. His very presence on the place of occurrence is not free from doubt. Had he been there near about the place of occurence, the appellants would have never spared him to testify against them. It was also argued that the prosecution has not alleged any motive. On the contrary, the evidence led in by the prosecution unerringly show that the relations between the deceased Tejiya and the father of Babu (PW 1) were extremely strained. Though Tejiya and the father of this witness were real brothers, they were living separately. It is farther there in the evidence that sometime before the alleged occurrence, a quarrel had taken place between Tejiya and his brother Vissa Ram (father of the witness PW 1 Babu) and Tejiya started living with accused Savia. It was argued that in view of such sweet relations between the deceased Tejiya and accused Savia, it was inconceivable that Tejiya would be done to death by the appellants. Mr. Bhandari also took us through the statement of PW 1 Babu and argued that his testimony was full of major contradictions and significant omissions which show that he is not a witness of truth. It was also argued that some independent persons, whose presence has been admitted by PW 1 Babu near about the place of occurrence at the time of incident, have not been examined by the prosecution and no explanation worth the name has been furnished for withholding them. It was also argued that at any rate, it would not be free from risk to maintain the conviction of the appellants on the sole testimony of PW 1 Babu, who being a child, could be tutored to speak anything at the behest of his father or grand parents.
8. Mr. Bhati, learned Public Prosecutor, while controverting all these contentions submitted that a conviction can be based on the sole testimony of witness. There is nothing inherently improbable in the testimony of PW 1 Babu which may affect his trustworthiness. The learned Sessions Judge accepted his testimony and we should be slow in up setting his approach. We have taken the respective submissions into consideration.
9. It would be proper to briefly read the evidence of PW 1 Babu. He deposed that on the day of occurrence he was working in his field while Tejiya was working in his own field. In the noon, the appellants, came, where Tejiya was working. Accused Savia had a gun while accused Chuniya had axes in his hands. Savia fired shots at Tejiya with his gun. Tejiya fell down and started raising cries. The appellants then struck multiple blows to him with their axes There was profuse bleeding from the wounds of Tejiya. Both the accused thereafter left the place and took their weapons with them. The witness stated that he got badly frightened and hid himself in the Arhar crop. While concealing himself in the Arhar crop, he has seen the occurrence. When the accused went away he came out. Mean while his grandmother Mst. Marga (PW 5) came there. He narrated the incident to her. He then proceeded towards the village. In the way, he met his grandfather Patiya (PW 6). He also apprised him of the incident and told him that Tejiya was done to death by the appellants Savia and Chuniya.
10. It is true that he is the real nephew of the deceased-victim, but his testimony cannot be disbelieved or discarded only on this count. His testimony will have to be judged on merits. The clinching question is whether PW 1 Babu should be taken to be a witness of truth and the conviction of the appellants should be maintained on what he testified. There is no presumption of perjury against the oral testimony of a witness. But before the oral testimony of a witness is accepted, the rule of prudence requires that it should be examined both intrinsically and extrinsically so as to eliminate any possible doubt.
11. While shifting and scrutinizing the testimony of PW 1 Babu, there are some self speaking circumstances which cannot be lost sight of. He is a child witness of tender age. He did not understand the sanctity of oath and as such no oath was administered to him. He is a close relative of the deceased. As we will see, the motive for the commission of the murder is not there. On the contrary, the deceased had very sweet and cordial relations with accused Savia so much so that when he broke away from his brother Veesa Ram (who is none else but the father of PW 1 Babu), he went and lived with him for some months.
12. The witness stated that he saw the occurrence while standing in his own field. If it was so, he must have been noticed by the appellants. In case he was noticed by them, he would not have been spared because sparing him meant creation of evidence against themselves. Site plan Ex. P13 does not show the existence of that field where this witness was standing & from where he claims to have seen the occurrence. In his cross-examination the witness admitted that the field of Neema Meena is situate in between his field and the field of occurrence. It means, the field wherein this witness was standing, is not adjacent or contiguous to the field of the deceased where the occurrence took place. We are unable to imagine that this child witness could have seen the occurrence from such a distant place. The witness stated that two shots were fired by accused Savia & he stated the whole incident to his grand parents. He deposed that he told them that two shots were fired by accused Savia. PW 5 Mst. Marga and PW 6 Patiya, who are the grand parents of this witness, admitted that this witness told them about the two shots being fired by accused Savia. Now, had it been so, these witnesses would have stated in their police statements (Ex.D 4 and Ex.D 5) about the two shots being fired. Unfortunately, in the police statements Ex. D4 and Ex. D5, with which they were confronted, this significant event of the shots is missing. The explanation given by these witnesses that they did state about the shots before the police during investigation, does not appear true. When so many facts have been recited in Ex. D4 and Ex. D5, there was no occasion for not mentioning this fact of shots in them, had it been deposed by them to the Investigating Officer. Not only so, the matter assumes importance in view of the omission of this fact in FIR Ex. P2 lodged by PW 6 Patiya. PW 6 Patiya admitted in his cross-examination that Babu (PW 1) had hold him about the shots before he went to police and lodged FIR Ex. P2. When cross-examined as to how he failed to mention this important fact in FIR Ex. P2, the stock explanation, which came from his side is that he did state so before police and he was unable to say as to how this important fact has not been mentioned in Ex.P 2. This is virtually no explanation. The omission of the fact of two shots being fired in FIR Ex. P2 and the police statements of PW 5 Marga and PW 6 Patiya cannot be lightly ignored or brushed aside. This omission induces us to infer that PW 1 Babu had not stated the story of shots being fired by accused Savia to his grand parents. That further induces us to say that in fact PW 1 Babu had not seen the occurrence. Had he seen the occurrence, he would have stated the story of shots being fired by accused Savia to his grand parents and had he told them this fact, it must have been mentioned both in FIR Ex. P2 and in their police statements Ex. D4 and Ex. D5.
13. The Investigating Officer reached the place of occurrence on the same day and prepared the site plan and the inquest report of the victim's dead body. The name of PW 1 Babu, who is the sole star witness of the prosecution, has been mentioned in FIR Ex. P2. Naturally, therefore, it expected that the investigating officer would have taken this witness with him to the place of occurrence and would have inspected the site with his help and at his instance. But this witness was not taken by the investigating officer at the scene of occurrence. Not only so, in site plan Ex. P13 and inspection memo Ex. P12 it has not been mentioned as to where this witness was standing when the incident took place and from which place he had seen the incident taking place. This is a serious infirmity and again persuade us to hold that the witness was not present nearabout the place of occurrence.
14. As the site plan EX.P 13 shows, the field of Neema Meena is situate contiguous to that of the deceased-victim wherein the incident took place. In his cross-examination, PW 1 Babu admitted that Neema Meena was present in his field, though at some distance, and that Neema Meena had not come at the place of occurrence. As we have dicussed above, the field of PW 1 Babu is situate at some distance and the field of Neema Meena is there in between his field and the field of the occurrence. As such Neema Meena was nearer to the place of occurrence rather than PW 1 Babu. The presence of Neema Meena has been admitted by PW 1 Babu and yet curiously enough, Neema Meena has not been produced in evidence by the prosecution for reasons only known to them. The non-production of a material witness like Meena is a serious circumstance to be taken into consideration while assessing and evaluating the testimony of PW 1 Babu.
15. PW 1 Babu also could not state where the blows were landed to the victim. He could not point out a single injury sustained by victim in the course of landing blows to him.
16. PW 1 Babu is a child witness of tender age of eleven years. A child has been taken as the most dangerous witness. His evidence is to be read with extreme care and caution. Instead of listing the authorities on the point relating to the appreciation of testimony of a child witness, we would quote the following passage from 'The Law of Evidence' by Woodroffe & Amirali (1981 Edition) page 3157:
Although even unsworn testimony of a child is admissible it must be received with great caution. Children of tender age, generally speaking are not to be regarded as trustworthy witnesses, since they can easily repeat glibly a story put into their mind, and do not possess the discretion to distinguish between what they have seen and what they have been heard. As a matter of prudence, therefore, Courts are generally chary of putting absolute reliance on the evidence of a solitary child witness and took for corroboration of the same from other circumstances in the case. Another point to be noted is, that the evidence of a child is notoriously unreliable, unless available immediately, hence closer scrutiny is called for. This is the more necessary when the conduct (of the child witness) is also abnormal and there are major discrepancies in the story. In such cases, independent corroboration is necessary.
17. A child of tender age is raw and influence easily works on him. As such, his evidence can be easily shaped and moulded and he can be tutored to state what he is made to state by the persons who exercised influence on him. It is why the Courts hesitate to base the conviction on the testimony of a solitary child witness. The Courts, therefore, look for corporation in such cases where the conviction is sought on the basis of testimony of a solitary child witness. Corroboration from independent source in such a case is required by way of caution and prudence and not as a rule of law.
18. As has been admitted by PW 1 Babu and his grand parents PW 5 Mst. Marga and PW 6 Patiya, a quarrel had taken place between the deceased and Vissa Ram (father of PW 1 Babu) about the wife of Vissa Ram. The deceased was a bachelor youngman. This quarrel assumed shape and the deceased broke away from Vissa Ram. The deceased thereafter went to live with accused Savia and stayed with him for some months. That suggests that the relations between the deceased and accused Savia were sweet and cordial. The prosecution has not alleged any motive which had promoted or incited the appellant to commit the murder of Tejiya. The cause alleged during trial is that the cattle of the deceased had damaged the crop of the appellants and that prompted them to finish him. There is no basis for this motive and even if it was there, it hardly constituted any sufficient cause. In FIR Ex. P 2, this cause of cattle damage has not been mentioned. Thus, there is absolutely no motive which prompted the accused to commit the murder of Tejiya. It is true that motive is not an essential element and is not 'sine qua non' for brining the offence of murder home to the accused. Nevertheless, the absence of motive is always a circumstance which is relevant for assessing and evaluating the evidence. The absence of motive does require that evidence adduced to prove the guilt should be closely and cautiously examined. Where the evidence is weak or inferior, open to grave criticism or doubtful, the absence of motive raises a strong presumption of innocence.
19. When the testimony of PW 1 Babu is judged in the light of the above circumstances, it is difficult for us to place implicit faith on what he testified against the appellants. The infirmities pointed out above are significant and they create dents in the crediblity and trustworthiness of PW 1 Babu, on which solitary testimony we are asked to maintain conviction of the appellants.
20. We may make it amply clear that no particular number of witness is required to prove a fact. As such the testimony of a solitary witness is sufficient to seek the conviction of the culprits, provided such a solitary witness is of sterling worth and his testimony can be accepted without reservations. The testimony of the solitary witness, in order to seek conviction, should be free from suspicion and above the board. It should be above reproach and must satisfy the conscience of the Court that it would not be unsafe to convict the culprit on the uncorroborated testimony of such a solitary witness. For the reasons discussed above, we find various infirmities in the testimony of PW 1 Babu. We, are therefore, unable to accept his testimony at its face value.
21. En-passant, we may add a few words about the investigation. The investigation was a carried out in a perfunctory manner and even the basic fundamentals were sacrificed. The gun was recovered but was not sent for test to the Ballistic Expert. PW 1 Babu, who is the sole star witness of the prosecution, was not taken on the spot and site inspection was not made in the presence to find out where he was standing at the time of the incident. According to PW 5 Mst. Magra and PW 6 Patiya (vide Ex D-4 and Ex. D-5), Achla Meghwal, Jetha and their wives. Veen Sargra and his wife were there when they reached the place of occurrence. These persons were working near about the place of occurrence. According to PW 1 Babu, as discussed earlier, Neema Meena was certainly present near about the scene of occurrence. And yet the investigation agency made no efforts to examine these witnesses. These are serious matters which throw considerable doubt on the fairness of the investigation. The investigating agency failed to do even that minimum which is ordinarily done in the murder cases.
22. For the reasons discussed above, we are unable to maintain the conviction of the appellant. The appeal of accused Savia and Chuna is, consequently, allowed. Their conviction and sentence under Section 302, IPC are set aside and they are acquitted. They are in jail and they shall be immediately set forth at liberty, if not wanted in any other case.