JUDGMENT 1. - Accused Ramdas was tried by learned Additional Sessions judge, Baran, under section 302, Indian Penal Code, for committing the murders of Heeradas and Ponran. Learned Additional Sessions judge found him guilty of double murders and sentenced him to death. 2. Both D.B. Criminal Reference No. 2 of 1979, State of Rajasthan v. Ramdas , made by learned Additional Sessions Judge for confirming the sentence of death, awarded to accused Ramdas, and D.B. Criminal Jail Appeal No. 276 of 1979, filed by accused Ramdas, arising out of the same judgment, are disposed of by one common judgment. 3. The facts giving rise to this appeal are that accused Ramdas was employed by Heeradas for looking after his land and for "Sewapooja". After some time on January 16, 1978, Mehant Heeradas executed a document Ex P1 in favour of the accused appointing him as his 'Chela' and authorised him to get the cultivable land vacated from the tenants and take the same into his possession. The prosecution case is that in the month of March, 1978, some misunderstanding occurred between the accused and his 'Guru'. The 'Guru' then asked the 'Chela' to vacate the premises with bag and baggage. Naturally the accused did not like this attitude of the 'Guru'. The inter se dispute was referred to one Durga Shanker, who ultimately decided that Mehant Heeradas should pay Rs. 500/- to the accused and in consideration thereof the accused should withdraw from the land and the 'Math'. As Mehant Heeradas did not have cash amount with him, he offered a bicycle and a Mare, which the accused did not accept. Durga Shanker suggested to the accused that Heeradas would give Rs. 500/. to him within 4 or 5 days after selling his bicycle and mare. Thereafter accused Ramdas and Heeradas (since deceased) came back to the 'Math' and started living in the same manner as they were living before. During the intervening night of 16th and 17th March, 1978, Mehant Heeradas (since deceased), his son Pooran (since deceased), PW 2 Geeta and younger sister Pushpa as well as the accused were sleepirg in the 'Math'. It appears that some verbal altercations took place between Mehant Heeradas and the accused in connection with his leaving the 'Math'. During the intervening night of 16th and 17th March, 1978, Mehant Heeradas (since deceased), his son Pooran (since deceased), PW 2 Geeta and younger sister Pushpa as well as the accused were sleepirg in the 'Math'. It appears that some verbal altercations took place between Mehant Heeradas and the accused in connection with his leaving the 'Math'. The accused got infuriated, took up an axe in his hand and chopped off the head of Heeradas and thereafter Heeradas's son Pooran was also assassinated. The occurrence is said to have been witnessed by PW 2 Geeta and Pushpa, children of the deceased, First information report of the occurrence Ex. P 2, was lodged with the Polite Station, Anta, on March 17, 1978, at 9.30 a m. by the accused himself. The distance between the place if the occurrence and the Police Station is about 11 miles. It is alleged that the accused went to the Police Station in the company of the two children of the deceased along with some of his own belongings. He produced them before the police and made a clean breast of his guilt and produced documents Ex. P 1. He also stated to the police that the dead bodies of Heeradas and Pooran were lying in the chowk of the 'Math'. Sub-inspector Shiv Singh (PW 4) arrested the accused and he after recording first information report and registering the case, rushed to the scene of the occurrence. Immediately on reaching the 'Math' the Sub-Inspector discovered the dead bodies of Heeradas and Pooran in consequence of the information Ex P 2 given by the accused. The recovery memo of the dead bodies is marked Ex P 7. The inspection memo is Ex P 4. 4. On March 20, 1978 the accused expressed his desire to get the blood stained axe recovered. The information memo is Ex P 52 In consequence of this information an axe was recovered from the place of its concealment, which was seized and sealed by the police vide Ex P 53. In consequence of the same information a key of a lock was also recovered. 5. The autopsies on the dead,bodies of Heeradas and Pooran were performed by Dr. Chandrasen Gour PW5 Post mortem reports are ExP 45 & Ex P/46. The same day the accused was clinically examined by Dr. Gour. In consequence of the same information a key of a lock was also recovered. 5. The autopsies on the dead,bodies of Heeradas and Pooran were performed by Dr. Chandrasen Gour PW5 Post mortem reports are ExP 45 & Ex P/46. The same day the accused was clinically examined by Dr. Gour. He noticed three linear cuts on the index finger of the right hand of the accused. The injury report is marked as Ex. P/47. 6. After commitment the accused was tried by learned Additional Sessions Judge, Baran. The accused pleaded not guilty to the charge. The prosecution examined 13 witnesses in support of their case. PW 2 Geeta is the eye-witness of the occurrence. PW 1 Ram Gopal, PW 3 Chaturbhuj and PW 10 Moolchand were examined to prove the motive of the accused for the commission of the crime. PW 5 Dr. Chandrasen Gour was examined to prove the postmortem reports of Heeradas and Pooran as well as the injury report Ex P/47 of the accused. PW 4 Shiv Singh and PW 9 Harish Chandra Bhagat are the investigating officers of the case. The accused in his statement recorded under Section 313, Cr.PC denied his complicity in the crime. He did not produce any evidence in his defence. 7. Learned Additional Sessions Judge, placing reliance on the statement of PW 2 Geeta corroborated by other circumstantial evidence, namely, (i) first information report Ex. P/2 given by the accused; (ii) motive of murder proved by the statements of witnesses as also by Ex. P/1; (iii) discovery of the dead bodies at the instance of the accused; and (iv) discovery of the weapon of the offence, held the accused guilty of the offence charged and sentenced him as mentioned above. 8. It cannot be disputed and has rightly not been disputed that Heeradas (since deceased) and Pooran since deceased sustained fatal injuries on the date and at the time and place as alleged by the prosecution, as a result whereof both of them met instantaneous death. From the injuries noted in the postmortem reports Ex. P/45 and Ex. P/46 and the statement of PW 5 Dr Chardrasen Gour it stands proved beyond any manner of doubt that who so ever inflicted injuries on the person, of both the deceased intended to cause their death. The death of Heeradas and Pooran in the opinion of PW 5 Dr. P/45 and Ex. P/46 and the statement of PW 5 Dr Chardrasen Gour it stands proved beyond any manner of doubt that who so ever inflicted injuries on the person, of both the deceased intended to cause their death. The death of Heeradas and Pooran in the opinion of PW 5 Dr. Chandrasen Gour were due to shock and severe hemorrhage as a result of cutting of main vessels of both the sides of the neck. 9. Learned counsel Mr. Tikkii has very persistently urged that there are certain outstanding fractures of the case, which, according to him, are sufficient to throw doubt on the entire prosecution case. It has been urged that the prosecution witnesses have concealed the true version of the occurrence. PW 2 Geeta is a child witness, who was metered to narrate against the accused, through she was available, at the Police Station, yet she was examined late in the night Pushoa. a material witness of the case has been withheld by the prosecution. The Additional Government Advocate, appearing on behalf of the State, has supported the judgment of the trial court. 10. As regards motive, it would suffice to say that the trial court held for good and cogent reasons that the accused had a motive fur committing the alleged murders. A perusal of Ex. P/1 shows that the accused was appointed a 'Chela' of Heeradas. He was also given power to evict the tenants of the land and enjoy and take possession of the property. This fact stands proved by the statement of PW 3 Chaturbhuj, who is an attesting witness of the document Ex. P/1. PW 10 Mool Chand has further proved that Heeradas was the person who put chased scamp for executing the document Ex P/I. Ram Gopal PW 1 has similarly supported the prosecution case on the point of motive. The genuineness of Ex. P/1 has rightly not been challenged, because it is a document which was produced by the accused himself at the time of giving the first information report and in his statement recorded under Section 313, Cr.P.C , he has admitted this fact. The evidence as to motive would, no doubt go a long way in cases wholly dependent on circumstantial evidence. It would form an important link in the chain of circumstantial evidence. The evidence as to motive would, no doubt go a long way in cases wholly dependent on circumstantial evidence. It would form an important link in the chain of circumstantial evidence. But that would not be essentially so in a case where there are circumstances of credibility, though even in such a case if motive is proved that would strengthen the prosecution case and fortify the Court in its ultimate conclusion. Reference may be made to Yaswant v. State of Maharashtra, AIR 1973 SC 337 . 11. In other words, where there is clear proof of motive for the crime, as it is in the case on hand, it lends additional support to the finding of the Court that the accused was guilty. But that does not mean that if in a given case motive is lacking, the evidence of an eye witness, which is otherwise, reliable is rendered untrustworthy. Proof of motive for the crime is not imperative in every case. 12. It is true that there was only a solitary eye-witness in the present case and that too a girl of 8, 9 years of age to whom the trial judge did consider expedient to administer oath, since according to him, she was mature enough to understand the significance of oath and could make rational answer. The competency of the child depends not so much on years, as ability to understand the importance of taking an oath and the consequences of making a false statement. 13. There is no precise age which determines the competency of a witness. This depends on the capacity and intelligence of a child to appreciate truth and falsehood as well as the duty to tell the truth. The decision of this question rests primarily with the trial judge, who sees the witness notices his manner, his apparent possession or lack of intelligence or which will tend to disclose his capacity as well as his understanding of an obligation of oath. Many of these methods cannot be photographed into the record. The decision of the trial judge is not required to be disturbed on review while hearing the appeal, unless from the record it is clear that it was erroneous. 14. Many of these methods cannot be photographed into the record. The decision of the trial judge is not required to be disturbed on review while hearing the appeal, unless from the record it is clear that it was erroneous. 14. It has been held in R.V. Combell, 1956 (2) All England Reporter 272 at page 274 as under:- "The question whether a particular child is of tender years is best regarded as a matter for the good sense of the Court." In that case Lord Godard C. J., further observed that corroboration of the sworn evidence of a child is not necessary as a matter of law but the Jury should be warned that there is risk in acting on the uncorroborated evidence of young boys and girls, though the Jury may do so, if convinced that the witness is telling the truth. 15. It is true that the fate of this case largely depends upon the statement of PW 2 Geeta. It should not be forgotten that the occurrence took place at the dead of night in a Math which was situated at a considerable distance from the village. There was in that situation hardly any possibility of there being other eye-witnesses. Once it was shown that Geeta was present in the Math at the time of the occurrence, the only question for consideration would be whether her evidence was credible or not. As has already stated, her statement is required to be scrutinised with care and caution as she was not only a child but the only witness examined as an eye witness of the occurrence. The trial Judge after thorough examination & careful consideration reached the conclusion that her evidence was not marred by any material discrepancy or contradiction. Her presence on the scene of the occurrence cannot be doubted. This fact stands established not only by her statement, but also by the first information report Ex. P/2, which was given by no other person than the accused himself. She being the daughter of the deceased and resident of the same Math must have got up from her sleep as a result of the exchange of hot words and altercations between her father and the accused. There is, therefore, nothing unnatural in her seeing the occurrence. She stated that prior to the occurrence, her father was lying on the Chabutara in the Chowk. There is, therefore, nothing unnatural in her seeing the occurrence. She stated that prior to the occurrence, her father was lying on the Chabutara in the Chowk. Her brother Pooran and the accused were sleeping in the Chowk and she as well as her younger sister were also sleeping there. The accused in her presence inflicted blows on his father and brother as a result whereof they met their death. The witness was cross-examined at length, but nothing has appeared in her cross-examination on the basis of which the veracity of her version can be doubted. A bare suggestion on the part of the accused that she could not have seen the occurrence is not sufficient to discard her statement. No doubt, this witness was examined at 9.30 p.m. on March 17, 1978 i.e. nearly after 12 hours of the giving of the first information report But it is also clear from the evidence that this witness was produced before the police by the accused at the time of giving the first information report and at that time the A.S.I was not present. He joined the investigation at about 2, O'Clock in the day. When he returned at the Police Station, he examined her. The delay in examining the witness has been convincingly and satisfactorily explained. 16. The counsel for the accused was at pains to take us to her entire statement. After going through her statement we find no reason to come at a conclusion different from that arrived at by the trial court. We are satisfied that the trial Court has rightly appeared the well-known principle regarding appreciation of the statement of a child witness and we have no reason to take a contrary view in the matter. 17. The statement of this witness, if corroboration is needed, is corroborated by the evidence of the recovery of the dead bodies. They were recovered in consequence of the information Ex. P/2 itself and both the dead bodies were recovered from the place indicated by the accused while giving the first information report. The recovery of the dead bodies of the deceased at the instance of the accused is no doubt an important piece of evidence. It is certainly relevant to corroborate the statement of PW 2 Geeta. P/2 itself and both the dead bodies were recovered from the place indicated by the accused while giving the first information report. The recovery of the dead bodies of the deceased at the instance of the accused is no doubt an important piece of evidence. It is certainly relevant to corroborate the statement of PW 2 Geeta. The first information report Ex P/2 was given by the accused and as such it is not admissible in evidence under sections 24 & 25 of the Indian Evidence Act as well as under Section 162, Criminal Procedure Code. The production of the two children at the Police Station, making of a statement and coming with a bicycle with other articles at the Police Station & making clean breast of the incident can be read as unimportant piece of conduct under Sec 8 of the Evidence Act. The evidence of conduct in similar circumstances has been relied upon by the Supreme Court time and again in a number of cases Reference for instance may be made to Aghnoo Ngesia v. State of Bihar, AIR 1966 SC 119 . 18. As regards non examination of Pushpa. suffice it to say that beside a non-competent witness under Section 118 of the Indian Evidence Act, 1872, the question which has to be determined is not whether the absence of her examination would vitiate the prosecution case by itself, but whether the evidence actually produced is reliable or not. Once the Court gives the finding that the evidence led by the prosecution is reliable and trust worthy, the infirmity arising out of nor-examination of other witness does not affect the credibility of the witness already examined and who is otherwise reliable. It will not be sufficient to put the prosecution witness out of court. Reference may be made to Pal Singh & Ors. v. State of UP, AIR 1979 SC 1116 Thus the non-examination of Pushpa does not affect the prosecution case adversely. 19. Learned Additional Sessions Judge has observed in the judgment under appeal that Pushpa was not found capable of giving rational answers. We are satisfied that Pushpa could not be examined by the learned Additional Sessions judge, because she was too tender in age to make rational answers in the course of examination or to understand that she was duty bound to speak the truth. 20. We are satisfied that Pushpa could not be examined by the learned Additional Sessions judge, because she was too tender in age to make rational answers in the course of examination or to understand that she was duty bound to speak the truth. 20. It is necessary for a Court before examining a child of tender years as witness to satisfy itself that the child is sufficiently intellectually developed to comprehend what he or she has seen and to give an intelligent account of it to the court. If the Court is of the opinion that by reason of tender years and defective or immature understanding the child could not have perceived the particular incident to prove which he or she is produced as a witness, the Court should not only refrain from administering the oath to him or her but should also decline to examine him or her as a witness Reference may be made to Jagannasth v. State, AIR 1952 Raj. 153 . 21. Besides this is another important corroborative factor, which merits consideration. The statement of PW 5 Dr. Chandrasen Gour shows that the accused was clinically examined by him on March 17, 1978. He noticed three injures on the index finger of the accused. According to the medical witness these injuries could have been refused during the course of scuffle. The duration of injuries was within 24 hours from the time of examination, which suggest that the injuries were caused in the course of the same incident in which the two murders were committed. 22. The accused raised the plea of alibi, but produced no evidence in support thereof, where the accused sets up a plea of alibi, the burden of proof lies on him under section 103 of the Evidence Act to establish such a plea A mere allegation relating to alibi without any evidence in support of no use. Besides that no witness has been cross-examined on this point. Plea of alibi when proved to be false as in the case on hand is a circumstance, which can he used against the accused. Besides that no witness has been cross-examined on this point. Plea of alibi when proved to be false as in the case on hand is a circumstance, which can he used against the accused. Reference may he made to Parshadi v. State of UP., AIR 1957 SC 211 , wherein while considering the effect of denial of relevant facts by the accused, it has been observed as under: "Where in a murder charge, the accused falsely denied several relevant facts which had been conclusively established, the Court would be justified in drawing an adverse inference from this against the accused." 23. The net result of the above discussion is that the conviction of the accused under Section 302, Indian Penal Code, for committing the murders of Heeradas & Pooran, is maintained. 24. Now remains the question of sentence. The accused is a young man of 30 years. He has yet a long life to live. There is nothing on record to prove that he is a previous convict or a man of bad conduct. The circumstances do suggest that the injuries inflicted on the person of Heeradas may be the result of a sudden quarrel and though the accused has committed the murder of innocent child Pooran, yet in the fact & circumstances of the case it would not be safe to maintain the sentence of death. The circumstances that he himself went to the police station, made a clean breast of the whole thing and produced the two children of the deceased at the Police Station can be considered as extenuating circumstance of the case. The discretion to impose the sentence of death is not so wide. Now Section 354 (3) of the Criminal Procedure Code, 1973 has narrowed the discretion. The death sentence is ordinarily ruled out & can only be imposed for "special reasons". Reference may be made to Bithnu Deo Shew v. State of West Bengal, AIR 1979 SC 964 . In the case on hand there are no special reasons to impose death penalty. 25. In the result we alter the sentence of death awarded to the accused appellant to imprisonment for life. The reference is accordingly declined and the appeal is allowed to the extent stated above. 26. A copy of this judgment be sent to the trial Court under the seat and signature of the Additional Registrar. (sd M.L. Shrimal) (Hon'ble Dr. 25. In the result we alter the sentence of death awarded to the accused appellant to imprisonment for life. The reference is accordingly declined and the appeal is allowed to the extent stated above. 26. A copy of this judgment be sent to the trial Court under the seat and signature of the Additional Registrar. (sd M.L. Shrimal) (Hon'ble Dr. K.S. Sidhu) 27. I agree in the order proposed that the appeal be dismissed with this modification that the sentence of death be reduced to imprisonment for life. (sd Dr K.S. Sidhu)Appeal partly allowed. *******