ARTICLES OF AN ADVOCATE: CHILD WITNESS - Penal Code, 1860 - s.302 and s.302 r/w s.120B - Murder - Allegation that respondent no.1 and respondent no.2 murdered the husband of respondent no.2 - Prosecution primarily relying upon testimony of PW1, the 8 year old minor daughter of respondent no.2 and deceased - Conviction of respondents by trial court - Set aside by High Court - On appeal, held: Testimony of P.W.1 is affirmed by the statements of other witnesses, proved circumstances and medical evidence - Her deposition being precise, concise, specific and vivid without any improvement or embroidery is worth acceptance in toto - High Court completely ignored the most material incriminating circumstances which appeared against the respondents-accused - Findings recorded by High Court were contrary to the evidence on record and thus, were perverse - Judgment of the trial Court restored. Witness - Child witness - Evidence of - Appreciation - Held: Deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence - The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring - Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully - However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition. Appeal - Appeal against acquittal - Power of appellate court - Scope -Held: The appellate court being the final court of fact is fully competent to re- appreciate, reconsider and review the evidence and take its own decision - Law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused - If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. Criminal jurisprudence - Presumption of innocence - Held: Every person is presumed to be innocent unless he is proved guilty by the competent court. Code of Criminal Procedure, 1973 - ss.161(2); 313(3); and proviso (b) to s.315 - Rule against adverse inference from silence of the accused - Held: Statement of accused u/s.313 Cr.P.C. can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case - However, as such a statement is not recorded after administration of oath and the accused cannot be cross-examined, his statement so recorded u/s.313 Cr.P.C. cannot be treated to be evidence within the meaning of s.3 of the Evidence Act - Constitution of India, 1950 - Article 20(3) - Evidence Act, 1872. Evidence Act, 1872 - s.6 - Admissibility of evidence under - Discussed. Respondent no.2 lodged FIR stating that her husband `C' died after falling during a spell of giddiness. In respect of the same incident, another complaint was lodged by PW2 alongwith PW1, the 8 year old daughter of respondent no.2 and `C', stating that respondent no.1 and respondent no.2 killed `C'. The trial Court held that the injuries found on the person of the deceased could not have been received from a fall on the ground and convicted respondent No.1 under Section 302 of IPC and respondent No.2 under Section 302 r/w Section 120-B IPC, and sentenced them to life imprisonment. The conviction was set aside by the High Court. Hence the present appeal. Allowing the appeal, the Court HELD: 1.1. The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross- examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross- examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. [Para 10] [14-G-H; 15-A-B] 1.2. There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature. [Para 11] [15- C-F] 1.3. Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. [Para 12] [15-G] 1.4. The deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition. [Para 13] [16-A-C] Rameshwar S/o Kalyan Singh v. The State of Rajasthan AIR 1952 SC 54; Mangoo & Anr. v. State of Madhya Pradesh AIR 1995 SC 959; Panchhi & Ors. v. State of U.P. AIR 1998 SC 2726; Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra AIR 2008 SC 1460; Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra AIR 2009 SC 2292; State of U.P. v. Krishna Master & Ors. AIR 2010 SC 3071 and Gagan Kanojia & Anr. v. State of Punjab (2006) 13 SCC 516 - relied on. 2. In an appeal against acquittal, in the absence of perversity in the impugned judgment, interference by this Court exercising its extraordinary jurisdiction, is not warranted. It is settled proposition of law that the appellate court being the final court of fact is fully competent to re- appreciate, reconsider and review the evidence and take its own decision. Law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court and there can be no quarrel to the said legal proposition that if two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. [Para 14] [16-D-G] 3. The injuries found on the body of `C' are in consonance with the deposition of P.W.1. The doctor found that blood had oozed from the mouth of the deceased and such injury could be possible as per the case of the prosecution. Evidently, the statement of P.W.1 is affirmed by the statements of other witnesses, proved circumstances and medical evidence. Her deposition being precise, concise, specific and vivid without any improvement or embroidery is worth acceptance in toto. [Paras 16, 23] [17- H; 18-A-B; 21-A-B] 4. Section 6 of the Evidence Act, 1872 is an exception to the general rule whereunder the hearsay evidence becomes admissible. However, such evidence must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" that it becomes relevant by itself. In the instant case, the statement of PW.2 indicating that PW.1 had come to him and told that her father was beaten by respondent no.1 with the help of her mother, is admissible under Section 6 of the Evidence Act. [Paras 17, 18] [15-D-G] Gagan Kanojia & Anr. v. State of Punjab (2006) 13 SCC 516 - relied on. 5. The witness examined by the prosecution supported its case to the extent that the door of the room wherein the offence had been committed was bolted from inside. It was only when PW5, the village Watchman threatened respondent no.2 saying he would call the police, the door was opened and, by that time, respondent no.1 had left the place of occurrence and the respondent no.2's husband had died. Thus, there is no conflict between the medical and ocular evidence. The prosecution case is fully supported by PW.5 and partly supported by PW.7 and PW.3. Even the part of the depositions of hostile witnesses, particularly Sarpanch (PW.4) can be relied upon to the extent that on being called, he reached the place of occurrence and found that the room had been bolted from inside. It is also evident from the evidence on record that PW.1 and PW.2 had called the persons from their houses and after their arrival, they found that the room had been bolted from inside. So to that extent, the version of these witnesses including of the hostile witnesses, can be believed and relied upon. [Para 20] [19-C-G] 6. Respondent no.2 has admitted in her statement under Section 313 of CrPC that PW.1 was present inside the room/place of occurrence and she further admitted that PW.1 had gone to call PW.2 at the relevant time. Thus, it is evident from the aforesaid admission of the said accused itself that both the persons were present inside the room and are well aware of the incident. All the witnesses have affirmed in one voice that P.W.2 had entered the room and after coming out, he disclosed that `C' has died. In fact, this fact had been affirmed by all the witnesses. It is evident from the material available on record that there was only one room house where the incident took place and no other space was available. The presence of respondent no.2 in the house is natural. [Paras 21, 22] [19-H; 20-A-E] 7. Respondent no.2 herself reached the Police Station and lodged the complaint that her husband `C' died because of falling from giddiness when he went to ease himself outside the house. This version has been dis- believed by the I.O. as well as by the Trial Court. Respondent no.2 would not have moved in the night for 8 K.Ms. to lodge the FIR, if she was not at fault or having a guilty mind. Secondly, she lodged the complaint in the name of Madhav Bai and not in her own name. [Para 26] [22-C-D] 8. The cumulative effect of reading the provisions of Article 20(3) of the Constitution with Sections 161(2); 313(3); and proviso (b) to Section 315 Cr.P.C. remains that in India, law provides for the rule against adverse inference from silence of the accused. Statement of the accused made under Section 313 Cr.P.C. can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross-examined, his statement so recorded under Section 313 Cr.P.C. cannot be treated to be evidence within the meaning of Section 3 of the Evidence Act, 1872. Section 315 Cr.P.C. enables an accused to give evidence on his own behalf to disprove the charges made against him. However, for such a course, the accused has to offer in writing to give his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be cross-examined on behalf of the prosecution and/or of the accomplice, if it is so required. In such a fact- situation, the accused being a competent witness, can depose in his defence and his evidence can be considered and relied upon while deciding the case. [Para 27] [22-E-H; 23-A-C] Tukaram G. Gaokar v. R.N. Shukla & Ors., AIR 1968 SC 1050; Dehal Singh v. State of Himachal Pradesh (2010) 9 SCC 85 - relied on. 9. All the witnesses including those who turned hostile had admitted that the room was bolted from inside and the statement of respondent no.2 that PW2 had bolted the room from outside has not been corroborated by any person. In case she and her husband `C' were not having any relation with PW.2 for the last 8-10 years, it would be un-natural that she would send her daughter (PW.1) to call PW2 because he was her husband's elder brother. While lodging report Ext. D-7 she told her name as Madhav Bai. However, in cross-examination she has stated that police men recorded her name as Madhav Bai though her name is Bhaggo Bai. More so, she has not specifically denied having illicit relationship with respondent no.2, nor she has denied that she made a twisting statement to help the respondent no.2 to get acquitted in the rape case. [Para 28] [24-C-F] 10. All the witnesses examined by the prosecution including those who have turned hostile are admittedly the neighbours of `C' and PW2. Thus, they are the most natural witnesses and the Trial Court has rightly placed reliance on their testimonies. The High Court has completely ignored the most material incriminating circumstances which appeared against the respondents/accused. The findings so recorded by the High Court are contrary to the evidence on record and thus, are held to be perverse. The judgment of the trial Court convicting the respondents/accused under Section 302 IPC is hereby restored. [Paras 30, 31 and 32] [25-C-F] Case Law Reference: AIR 1952 SC 54 relied on Para 6 AIR 1995 SC 959 relied on Para 7 AIR 1998 SC 2726 relied on Para 8 AIR 2008 SC 1460 relied on Para 9 AIR 2009 SC 2292 relied on Para 10 AIR 2010 SC 3071 relied on Para 11 (2006) 13 SCC 516 relied on Para 12 (1999) 9 SCC 507 relied on Para 17 AIR 1968 SC 1050 relied on Para 27 (2010) 9 SCC 85 relied on Para 27 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1289 of 2005. From the Judgment & Order dated 31.3.2004 of the High Court of Madhya Pradesh at Jabalpur Bench at Gwalior in Criminal Appeal No. 262 of 1997. Vibha Datta Makhija for the Appellant. K. Sarada Devi for the Respondents.